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THE PROTECTION OF 
NEUTRAL RIGHTS AT SEA 

DOCUMENTS ON THE NAVAL WARFARE 



PRICE 25 CENTS 



THE PROTECTION OF 
NEUTRAL RIGHTS AT SEA 

Documents on the Naval Warfare 



WITH AN INTRODUCTION BY 

WILLIAM R. SHEPHERD 

Professor of History in Columbia University 



STURGIS & WALTON 
COMPANY 

1915 



■ 5^5- 



Copyright, 1915 
By STURGIS & WALTON COMPANY 



Set up and printed from type. Published September, 1915 






INTRODUCTION 

When the American people are asked for a definite opinion on some 
jS^reat question, they cannot offer it to advantage without seeing the 
record before them. Having neither time nor incHnation to search 
through newspaper files or government reports, they may let hear- 
say, impulse or emotion, under the spell of headline and editorial, 
take the place of reason in shaping their judgment. In order, there- 
fore, to estimate calmly the situation created by the naval warfare in 
its bearing upon this country, the course of events since its outbreak 
ought to be studied carefully in the light of the documents that set 
them forth. 

Apart from the Declaration of London, most of the papers here 
assembled have been taken from " Diplomatic Correspondence with 
Belligerent Governments relating to Neutral Rights and Commerce," 
published by the Department of State, May 27, 1915; the remainder 
not so published, from newspaper print. They serve to illustrate the 
more important acts and policies of the two great antagonists alone. 
Men soon recognized that " Britannia " and " Germania " were the 
queens, and their respective allies only the minor pieces, in the war 
game of the world. What these nations have done, and what they 
purpose to do, are the determining factors; their partners are useful 
to make some of the moves. 

From an examination of the record two primary facts are clear: 
first, that under the plea of military necessity both Great Britain and 
Germany have committed violations of international law, and have 
injured neutral rights accordingly; second, that the United States has 
protested against these violations, directly on its own behalf and 
indirectly on behalf of other neutrals. To Great Britain the exclu- 
sion from Germany of food and raw materials hitherto not regarded 
as contraband under the law of nations, and the denial of any com- 
mercial privileges whatever on the ocean, are matters apparently 
vital. To Germany the exclusion from Great Britain of munitions 
of war, and the destruction of its oversea trade, are matters no less 
vital. To the United States the preservation of neutral rights in the 
face of these belligerent claims is a matter just as vital. 

Convinced that physical and financial endurance is the supreme test, 
believing also that national existence may depend upon the issue of 
the struggle, Great Britain and Germany, it would seem, are striving 
to starve each other out. Impelled by such ideas they try to render 
the process of exclusion effectual by the only means that each has 
at its disposal : the one by ships that course over the seas, the other 
by ships that course under the seas. 

Germany has no merchantmen left on the ocean for British sub- 
marines to destroy if the other ships of war were insufiicient in 
strength or number for their capture. Great Britain, thereupon, 
seizes neutral vessels^ even when bound for neutral ports and carry- 
ing noncontraband cargoes. The ships may be released and the car- 
goes, if requisitioned, paid for; but the right of neutrals, nevertheless, 



INTRODUCTION 

to trade with other neutrals, and even with belligerents, In noncontra- 
band articles is a fundamental principle of the freedom of the seas 
which cannot, and should not, be bought off with money. 

Great Britain has an enormous number of merchantmen available 
to bring it all the supplies it needs. Germany has no desire to sacri- 
fice its *' supermarine " fleet by a conflict with the far more powerful 
British navy. Accordingly it uses its submarines to destroy, not only 
belligerent warships, but belligerent merchantmen, and even neutral 
vessels of the latter sort if they are known to carry contraband. 

On behalf of this new mode of warfare it is asserted that, because 
of the special nature of the submarines, they cannot observe the rules 
of international law which apply solely to the kind of warships in 
existence at the time such rules were formulated. If belligerent mer- 
chantmen, consequently, were unarmed, and were they neither to 
hoist neutral flags, nor to attempt escape, nor to resist visit and search, 
nor to summon aid by wireless, those rules could be heeded, so far at 
least as the safety of human life is concerned. 

Compliance with these conditions, however, might be more than 
human nature under the circumstances would be disposed to yield. 
Nor would it meet the clear regulation of international law which 
(provides for an assurance of the safety of the passengers and crew 
of a merchantman before the vessel is destroyed. This too is a 
fundamental principle of the freedom of the seas which cannot, and 
should not be, satisfied by expressions of regret for its non-observance. 
Just to what extent the undoubted right of neutrals to travel on a 
belligerent merchantman, having contraband on board, confers the 
privilege also of involving their government in grave complications 
on their account, is a question no easier to answer than the one that 
concerns the extent to which such a government is bound to protect the 
property of its citizens in areas controlled by belligerents. 

The force of circumstances in general and the plea of military 
necessity in particular, at all events, appear to make it imperative that 
Great Britain should prohibit neutrals to trade with Germany, deny- 
ing them the plain right to do so and even depriving them of their 
property through the losses incident to seizure and detention. Sim- 
ilar reasons appear to make it equally imperative that Germany should 
prohibit trade with Great Britain in vessels belonging to that coun- 
try or its allies, or in neutral ships if they carry contraband, even at 
the risk to human life arising from the destruction of the vessels 
affected. 

Under the tremendous pressure of contending interests in which the 
very existence of the warring nations may hang in the balance, each 
of the two great belligerents has accused the other of committing 
illegal and inhuman acts, and each has adopted measures of reprisal 
accordingly. In the belief that it is invoking the supreme law of 
self-preservation, each has felt itself compelled to set aside an inter- 
national law that aims to uphold the rights of neutrals as equal, if 
not superior, to the claims of belligerents. 

Two vital interests, those of Great Britain and Germany, are in 
deadly conflict and they threaten to draw a third one, that of the 
United States as the representative of neutral nations, into their 
toils. In all fairness it is quite as absurd to suppose that Great Britain 
is deliberately violating the rights of neutrals for the mere sake of 
doing so, as it is to assume that Germany is wilfully destroying the 
lives of non-combatants for the sheer pleasure of it. The serious 



INTRODUCTION 

difficulty that confronts our own country is the extent to which it 
can treat the actions of one belhgerent with due regard to the actions 
of the other. 

Yet whatever the situation of the powers at war, neutrals ought 
not to be sacrificed for the benefit of belHgerents. If the disputants 
choose to settle their differences by fighting, that is no reason why 
the outsider should be forced to suffer for their misdeeds or mistakes 
or misfortunes. If it be pleaded that belligerents have as much title 
to consideration as neutrals, the answer is that the whole trend of 
international agreement in modern times has been moving toward an 
effective recognition of the rights of nations that remain at peace 
over against the claims of nations that see fit to war. 

Mindful of these truths the United States, early in the course of 
the struggle, proposed to the belligerents that they adopt the Declara- 
tion of London as a temporary code of naval warfare (No. i). This 
suggestion it withdrew on learning that Great Britain insisted upon 
modifications of that code which were quite at variance with it (No. 
4). Then, after Great Britain had declared the North Sea a mili- 
tary area, for the purpose of shutting out direct commerce with Ger- 
many (No. 8), and Germany had retaliated by declaring the waters 
around Great Britain a war zone, with a similar object in view (No. 
14), the United States proposed the adoption of certain mutual con- 
cessions which would soften the rigors of warfare and uphold the 
rights of neutrals (No. 26). This proposal Germany accepted in sub- 
stance (No. 2'j) and Great Britain answered, not only by rejection 
(No. 32), but by virtually prohibiting neutral trade with Germany 
altogether (Nos. 28 and 34). The protest of the United States against 
such a prohibition (No. 36) remained unheeded for nearly four months 
(No. 61). Finally, in the notes following the German attacks on 
the Gulfli<jht, the Ctishing and the Lusitania (Nos. 46, 50, 51, 53, 56 
and 60), wherein the United States protests against the loss of inno- 
cent lives, the idea of mutual concession appears once more with this 
country as its sponsor. Whether it will find favor at the hands of 
both belligerents is yet to be determined. 

Reading these documents in their wider relationship to the Euro- 
pean struggle, another fact is evident — the fact that never has the 
United States been afforded so wondrous an opportunity to champion 
the rights of neutral nations. To this end, if individual protests 
continue unavailing, it should arrange for the meeting under its 
auspices of a congress of such nations, to draw up a statement of 
the principles that justice demands should be observed by the nations 
at war. Wisely framed, that statement might utter a word of moral 
power that would resound above the roar of cannon and musketry. 
The congress, also, if its work did not indeed hasten the end of the 
war, could contribute in no small degree to the eventual triumph of 
neutral rights over belligerent claims, and thus put a milestone on the 
pathway of progress toward universal peace. 



CONTENTS 

PAGE 

Introduction , . iii 

The Declaration of London : Chapter II — Contraband of War . , i 

No. I. American note, August 6, 1914, suggesting the adoption of the 

Declaration of London as a temporary code of naval warfare . . 5 

No. 2. Statement, August 22, 1914, regarding the German reply to 
No. I 6 

No. 3. British note, August 22, 1914, replying to No. i . . . . 6 

No. 4. American note, October 22, 1914, withdrawing the suggestion 
contained in No. i, and defining the policy of the United States 
irrespective of the Declaration of London 7 

No. 5. American note, October 24, 1914, similar to No. 4 . . . . 7 

No. 6. British proclamation, October 29, 1914, revising the list of 

contraband of war 8 

No. 7. British order in council, October 29, 1914, adopting the Dec- 
laration of London, exclusive of the lists of contraband and non- 
contraband, and inclusive of certain other modifications ... 9 

No. 8. Announcement of the British Admiralty, November 2, 1914, 

declaring the North Sea a military area 10 

No. 9. German note, November 23, 1914, regarding the British and 

French modifications of the Declaration of London .... 11 

No. 10. British proclamation, December 23, 1914, again revising the 
list of contraband of war 14 

No. II. American note, December 26, 1914, in reference to the 
seizure and detention of American cargoes destined for neutral 
European ports 16 

No. 12. British note, January 7, 191 5, replying tentatively to No. 11 . 20 

No. 13. Summary of proclamation of the German Federal Council, 

January 25, 1915, in reference to foodstuffs 24 

No. 14. Announcement of the German Admiralty, February 4, 1915, 
declaring the waters around Great Britain a war zone .... 26 

No. 15. Memorandum of the German Government, February 4, 1915, 

regarding the declaration of a war zone 26 

No. 16. Statement of the British Foreign Ofiice, February 7, 1915, 
regarding the use of neutral flags and the German declaration 
of a war zone 28 

No. 17. British note, February 10, 1915, replying finally to the Amer- 
ican note of December 26, 1914 (No. 11), in regard to the seizure 
and detention of American cargoes 28 

No. 18. American note, February 10, 1915, regarding the German 

declaration of a war zone 41 

No. 19. American memorandum, February to, 1915. concernmg the 
use of the American flag by British vessels 43 

No. 20. American note, February 15, 191 5. regarding the IVilhelmma . 44 



CONTENTS 

PAGE 

No. 21, _ German note, February 15, 1915, in reference to the procla- 
mation of January 25 concerning foodstuffs (No. 13) .... 46 

y No. 22. German statement, February 15, 1915, in regard to armed 
British merchantmen, the use of neutral flags and the mining of 
the war zone 47 

No. 23, German note, February 16, 1915, replying to the American 
note of February 10 (No. 18), in regard to the declaration of 
a war zone . 48 

No. 24. British memorandum, February 19, 191 5, concerning the use 

of the American flag by British vessels 53 

No. 25. British memorandum, February 19, 1915, regarding the 

Wilhdlmina 54 

No. 26. American note, February 20, 1915, proposing mutual con-, 
cessions in the conduct of naval warfare 56 

No. 27. German note, February 28, 1915, accepting in substance the 

American proposal of February 20 (No. 26) 58 

No. 28. British and French declaration, March i, 1915, in restraint 

of sea-borne commerce with Germany . . . 59 

No. 29. Resolution of Congress, March 4, 1915, safeguarding the 

neutrality of American waters 60 

No. 30. American note, March 5, 191 5, inquiring how the restraint 
upon sea-borne commerce with Germany is to be effected ... 61 

No. 31. British proclamation, March 11, 1915, once more revising the 

list of contraband of war 62 

No. 2>'2: British memorandum, March 13, 1915, rejecting the Amer- 
ican proposal of February 20 (No. 26) 63 

No. 2>2i' British note, March 15, 1915, replying to the American inquiry 
about the restraint on sea-borne commerce with Germany 
(No. 30) 66 

No. 34. British order in council, March 15, 1915, in restraint of sea- 
borne commerce with Germany 67 

No. 35. British order in council, March 23, 1915, authorizing the 

requisition of neutral ships 69 

No. z^. American note, March 30, 1915, regarding British violation 
of neutral rights 72 

No. 37. First American note, March 31, 1915, in regard to the Wil- 
liam P. Frye 76 

No. 38. German memorandum. April 4, 1915, concerning the British 
restraint of sea-borne commerce with Germany and the Amer- 
ican exportation of war material 77 

No. 39. First German note, April 5, 1915, in regard to the JJ^illiam 
P. Frye 79 

No. 40. Britism memorandum, April 8, 1915, in reference to the 

Wilhclmina 80 

No. 41. American note, April 21, 1915, replying to No. 38 ... 81 

No. 42. Announcement of the German Embassy, April 22, 1915, 
warning against embarkation on vessels belonging to Great Britain 
or its allies 83 

No. 43. Second American note, April 28, 191 5, in regard to the 

William P. Frye 8-| 



COiNTENTS 

PAGE 

No. 44. German note, May 10, 191 5. expressing regret for the loss 

of American lives through the sinking of the Liisitania ... 85 
No. 45. German statement, May 11, 1915. i" regard to the treatment 

of neutral vessels in the war zone °5 

No 46 First American note, May 13, 191 5, regarding the loss of 
American lives and the injury to yVmcrican commerce mcidental 

to the naval warfare °" 

No. 47. British memorandum. May 20, 191 5, in reference to the 

detention of American ships and cargoes «9 

No. 48. Statement of the Secretary of State, May 21, 1915, regard- 
ing an error in No. 47 ^^ 

No. 49. Statement of the British Embassy, May 21, 1915, correcting 

the error in No, 47 9 

No =50. First German note, May 28, 191 5, regarding the loss of 
American lives and the injury to American commerce incidental 

to the naval warfare 93 

No. 51. German note. June i, 1915, "i reference to attacks on the 

Giiinight and the Cushing ^5 

No 52. Second German note, June 7, mS, in regard to the William 

P. Frye ^ 

No ^3 Second American note, June 9, iQiS, regarding the Ipss of 
American lives and the injury to American commerce mcidental 

to the naval warfare 

No 54. British memorandum, June 17, I9i5, in reference to the 

treatment of American commerce 

No. 55. Third American note, June 24, 1915, in regard to the Wil- 

Ham P. Frye 

No ^6 Second German note. July 8. 1915, regarding the loss of 
American Hves and the injury to American commerce incidental 

to the naval warfare 

No. 57. Summary of American "caveat," July 14, IQ^S, -gainst ^^^ 

British prize court procedure 

No. 58. Paraphrase of American note July 15, I9i5, protesting 

against the seizure of the cargo of the ATrc/t^^ ^'^ 

No 59. German memorandum, July 15, iQiS, in regard to the ^^^ 
Nebraskan 

to the naval warfare 

(No. 36) , ,,..,,. 

No. 62. Third German note, July 30, I9i5, in regard to the II ilUam^ ^^^ 

P. Frye 

No. 63. British note, July 31. IQ^S, replying to No. 57 ^ 

No 64. British note. July .31. 1915, replying t9 No. 58 • • • ■ ■ ''' 
No. 65. Fourth American note. August 16, 1915, in regard to the ^^^ 

William P. Frye ' 

No. 66. British proclamation, August 21, 1915. declaring cotton con- ^^ 

traband of war 



THE PROTECTION OF NEUTRAL 
RIGHTS AT SEA 



The Declaration of London : Chapter II — Contraband of 
War.* 

Contraband of War 

Article 22 

The following articles may, without notice, be treated as contraband 
of war, under the name of absolute contraband : — 

(i) Arms of all kinds, including arms for sporting purposes, and 
their distinctive component parts. 

(2) Projectiles, charges, and cartridges of all kinds, and their dis- 
tinctive component parts. 

(3) Powder and explosives especially prepared for use in war, 

(4) Gun-mountings, limber boxes, limbers, military wagons, field 
forges, and their distinctive component parts. 

(5) Clothing and equipment of a distinctively military character. 

(6) All kinds of harness of a distinctively military character. 

(7) Saddle, draught, and pack animals suitable for use in war. 

(8) Articles of camp equipment, and their distinctive component 
parts. 

(9) Armour plates. 

(10) War-ships, including boats, and their distinctive component 
parts of such a nature that they can only be used on a vessel of war. 

(11) Implements and apparatus designed exclusively for the manu- 
facture of munitions of war, for the manufacture or repair of arms, 
or war material for use on land or sea. 

Article 2^ 

Articles exclusively used for war may be added to the list of abso- 
lute contraband by a declaration, which must be notified. 

Such notification must be addressed to the Governments of other 
Powers, or to their representatives accredited to the Power making 
the declaration. A notification made after the outbreak of hostilities 
is addressed only to neutral Powers. 

* At the Naval Conference called together by Great TJritain at London the Declara- 
tion was signed, February 26, 1909. by all of the Powers represented: seven of the 
present belligerents, viz.. Great Britain, France, Russia, Japan, Italy, Germany and 
Austria-Hungary, and three of the neutral nations, viz., the United States, Spain 
and Holland. Later, chiefly because of British opposition to the articles defining 
contraband of war, it failed of ratification. Lawrence, Documents Illustrative of 
International Law, 351 ndte. 

1 



2 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Article 24 

The following articles, susceptible of use in war as well as for pur- 
poses of peace, may, without notice, be treated as contraband of war, 
under the name of conditional contraband: — 

(i) Foodstuffs. 

(2) Forage and grain, suitable for feeding animals. 

(3) Clothing, fabrics for clothing, and boots and shoes, suitable for 
use in war. 

(4) Gold and silver in coin or bullion ; paper money. 

(5) Vehicles of all kinds available for use in war, and their com- 
ponent parts. 

(6) Vessels, craft, and boats of all kinds; floating docks, parts of 
docks and their component parts. 

(7) Railway material, both fixed and rolling-stock, and material 
for telegraphs, wireless telegraphs, and telephones. 

(8) Balloons and flying machines and their distinctive component 
parts, together with accessories and articles recognisable as intended 
for use in connection with balloons and flying machines. 

(9) Fuel; lubricants. 

(10) Powder and explosives not specially prepared for use in war. 

(11) Barbed wire and implements for fixing and cutting the same. 

(12) Horseshoes and shoeing materials. 

(13) Harness and saddlery. 

(14) Field glasses, telescopes, chronometers, and all kinds of nau- 
tical instruments. 

Article 2^ 

'' Articles susceptible of use in war as well as for purposes of peace, 
other than those enumerated in Articles 22 and 24, may be added to 
the list of conditional contraband by a declaration, which must be 
notified in the manner provided for in the second paragraph of 
Article 23. 

Article 26 

If a Power waives, so far as it is concerned, the right to treat as 
contraband of war an article comprised in any of the classes 
enumerated in Articles 22 and 24, such intention shall be announced 
by a declaration, which must be notified in the manner provided for 
in the second paragraph of Article 23. 

Article 2j 

Articles which are not susceptible of use in war may not be declared 
contraband of war. 

Article 28 

The following may not be declared contraband of war : — 
(i) Raw cotton, wool, silk, jute, flax, hemp, and other raw ma- 
terials of the textile industries, and yarns of the same. 

(2) Oil seeds and nuts; copra. 

(3) Rubber, resins, gums, and laces; hops. 

(4) Raw hides and horns, bones, and ivory. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 3 

(5) Natural and artificial manures, including nitrates and phos- 
phates for agricultural purposes. 

(6) Metallic ores. 

(7) Earths, clays, lime, chalk, stone, including marble, bricks, 
slates, and tiles. 

(8) Chinaware and glass. 

(9) Paper and paper-making materials. 

(10) Soap, paint and colours, including articles exclusively used 
in their manufacture, and varnish. 

(11) Bleaching powder, soda ash, caustic soda, salt cake, am- 
monia, sulphate of ammonia, and sulphate of copper. 

(12) Agricultural, mining, textile, and printing machinery, 

(13) Precious and semi-precious stones, pearls, mother-of-pearl, 
and coral. 

(14) Clocks and w^atches, other than chronometers. 

(15) Fashion and fancy goods. 

(16) Feathers of all kinds, hairs, and bristles. 

(17) Articles of household furniture and decoration; office furni- 
ture and requisites. 

Article 2p 

Likewise the following may not be treated as contraband of war : — 

( I ) Articles serving exclusively to aid the sick and wounded. They 

can, however, in case of urgent military necessity and subject to the 

payment of compensation, be requisitioned, if their destination is that 

specified in Article 30. 

(2) Articles intended for the use of the vessel in which they are 
found, as well as those intended for the use of her crew and pas- 
sengers during the voyage. 

Article 50 

Absolute contraband is liable to capture if it is shown to be destined 
to territory belonging to or occupied by the enemy, or to the armed 
forces of the enemy. It is immaterial whether the carriage of the 
goods is direct or entails transhipment or a subsequent transport by 
land. 

Article 51 

Proof of the destination specified in Article 30 is complete in the 
following cases : — 

(i) When the goods are documented for discharge in an enemy 
port, or for delivery to the armed forces of the enemy. 

(2) When the vessel is to call at enemy ports only, or when she 
is to touch at an enemy port or meet the armed forces of the enemy 
l)efore reaching the neutral port for which the goods in question are 
documented. 

Article 32 

When a vessel is carrying absolute contraband, her papers are con- 
clusive proof as to the voyage on which she is engaged, unless she is 
found clearly out of tte course indicated by her papers and unable 
to give adequate reasons to justify such deviation. 



4 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Article 33 

Conditional contraband is liable to capture if it is shown to be 
destined for the use of the armed forces or of a government depart- 
ment of the enemy State, unless in this latter case the circumstances 
show that the goods cannot in fact be used for the purposes of war 
in progress. This latter exception does not apply to a consignment 
coming under Article 24 (4). 

Article 34 

The destination referred to in Article 33 is presumed to exist if the 
goods are consigned to enemy authorities, or to a contractor estab- 
lished in the enemy country who, as a matter of common knowledge, 
supplies articles of this kind to the enemy. A similar presumption 
arises if the goods are consigned to a fortified place belonging to the 
enemy, or other place serving as a base for the armed forces of the 
enemy. No such presumption, however, arises in the case of a mer- 
chant vessel bound for one of these places if it is sought to prove 
that she herself is contraband. 

In cases where the above presumptions do not arise, the destination 
is presumed to be innocent. 

The presumptions set up by this Article may be rebutted. 

Article 55 

Conditional contraband is not liable to capture, except when found 
on board a vessel bound for territory belonging to or occupied by the 
enemy, or for the armed forces of the enemy, and wlien it is not to be 
discharged in an intervening neutral port. 

The ship's papers are conclusive proof both as to the voyage on 
which the vessel is engaged and as to the port of discharge of the 
goods, unless she is found clearly out of the course indicated by her 
papers, and unable to give adequate reasons to justify such deviation. 

Article 36 

Notwithstanding the provisions of Article 35, conditional contra- 
band, if shown to have the destination referred to in Article 33, is 
liable to capture in cases where the enemy country has no seaboard. 

Article 57 

A vessel carrying goods liable to capture as absolute or condi- 
tional contraband may be captured on the high seas or in the terri- 
torial waters of the belligerents throughout the whole of her voyage, 
even if she is to touch at a port of call before reaching the hostile 
destination. 

Article 38 

A vessel may not be captured on the ground that she has carried 
contraband on a previous occasion if such carriage is in point of fact 
at an end. 

Article jp 
Contraband goods are liable to condemnation. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 5 

Article 40 

A vessel carrying contraband may be condemned if the contraband, 
reckoned either by vahie, weight, volume, or freight, forms more than 
half the cargo. 

Article 41 

If a vessel carrying contraband is released, she may be condemned 
to pay the costs and expenses incurred by the captor in respect of the 
proceedings in the national prize court and the custody of the ship 
and cargo during the proceedings. 

Article 42 

Goods which belong to the owner of the contraband and are on 
board the same vessel are liable to condemnation. 

Article 4^ 

If a vessel is encountered at sea while unaware of the outbreak 
of hostilities or of the declaration of contraband which applies to her 
cargo, the contraband cannot be condemned except on payment of 
compensation; the vessel herself and the remainder of the cargo are 
not liable to condemnation or to the costs and expenses referred to in 
Article 41. The same rule applies if the master, after becoming 
aware of the outbreak of hostilities, or of the declaration of contra- 
band, has had no opportunity of discharging the contraband. 

A vessel is deemed to be aware of the existence of a state of war, 
or of a declaration of contraband, if she left a neutral port subse- 
quently to the notification to the Power to which such port belongs 
at the outbreak of hostilities or of the declaration of contraband 
respectively, provided that such notification was made in sufficient 
time. A vessel is also deemed to be aware of the existence of a state 
of war if she left an enemy port after the outbreak of hostilities. 

Article 44 

A vessel which has been stopped on the ground that she is carrying 
contraband, and which is not liable to condemnation on account of 
the proportion of contraband on board, may, when the circumstances 
permit, be allowed to continue her voyage if the master is willing to 
hand over the contraband to the belligerent warship. 

The delivery of the contraband must be entered by the captor on 
the logbook of the vessel stopped, and the master must give the captor 
duly certified copies of all relevant papers. 

The captor is at liberty to destroy the contraband that has been 
handed over to him under these conditions. 

(Lawrence, Documents Illustrative of International Law, 336-S43-) 

No. I. American note, August 6, 1914, suggesting the adop- 
tion of the Declaration of London as a temporary code of naval 
warfare.* 

The Secretary of State to the American Ambassador at London. 
Mr. Bryan instructs Mr. Page to inquire whether the British Gov- 
ernment is willing to agfee that the laws of naval warfare as laid down 

* Same to the American Embassies at Berlin, Vienna, St. Petersburg and Paris, 
and to the American Legation at Brussels. 



6 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

by the Declaration of London of 1909 shall be applicable to naval 
warfare during the present conflict in Europe provided that the Gov- 
ernments with whom Great Britain is or may be at war also agree to 
such application. Mr. Bryan further instructs Mr. Page to state that 
the Government of the United States believes that an acceptance of 
these laws by the belligerents would prevent grave misunderstandings 
which may arise as to the relations between neutral powers and the 
belligerents. Mr. Bryan adds that it is earnestly hoped that this in- 
quiry may receive favorable consideration. 

(Diplomatic Correspondence with Belligerent Governments relating 
to Neutral Rights and Commerce, 5. Issued by the Department of 
State, May 2y, 191 5.) 

No. 2. Statement, August 22, 19 14, regarding the German 
reply to No. i.* 

The American Ambassador at Berlin to the Secretary of State. 

Mr. Gerard refers to Department's August 19, 4 p. m., and says 
his August 20, I a. m., by way of Copenhagen, states that the German 
Government will apply the Declaration of London, provided its pro- 
visions are not disregarded by other belligerents. 
{Dip. Corr. 5.) 

No. 3. British note, August 22, 1914, replying to No. i. 

The Secretary of State for Foreign Affairs ad interim to the Ameri- 
can Ambassador. 

Your Excellency: On the 7th instant you were so good as to 
address to me a note inquiring, pursuant to instructions from the 
Secretary of State at Washington, whether His Majesty's Government 
were willing to agree that the laws of naval warfare, as laid down by 
the Declaration of London, 1909, should be applicable to naval warfare 
during the present European conflict, provided that the Governments 
with whom Great Britain is at war, or with whom her relations are 
not normal, also agree to such application. 

Your Excellency added that it was the belief of your Government 
that the acceptance of these laws by the belligerents would prevent the 
possibility of grave misunderstandings as to the relations between 
belligerents and neutrals. 

I have the honor to inform Your Excellency that His Majesty's 
Government, who attach great importance to the views expressed in 
Your Excellency's note and are animated by a keen desire to consult 
so far as possible the interests of neutral countries, have given this 
matter their most careful consideration and have pleasure in stating 
that they have decided to adopt generally the rules of the declaration 
in question, subject to certain modifications and additions which they 
judge indispensable to the efficient conduct of their naval operations. 
A detailed explanation of these additions and modifications is contained 
in the inclosed memorandum. 

The necessary steps to carry the above decision into effect have now 
been taken by the issue of an order in council, of which I have the 
honor to inclose copies herein for Your Excellency's information and 
for transmission to your Government. 

I may add that His Majesty's Government, in deciding to adhere to 

* The despatch of August 20 herein referred to does not appear to have been 
published. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 7 

the rules of the Declaration of London, subject only to the aforesaid 
modifications and additions, have not waited to learn the intentions of 
the enemy Governments, but have been actuated by a desire to ter- 
minate at the earliest moment the condition of uncertainty which has 
been prejudicing the interests of neutral trade. 
I have, etc., 

E. A. Crowe. 
(Dip. Corr. 6.) 

No. 4. American note, October 22, 1914, withdrawing the 
suggestion contained in No. i, and defining the policy of the 
United States irrespective of the Declaration of London. 

The Secretary of State ad interim to the American Ambassador at 
London. 

Inasmuch as the British Government consider that the conditions 
of the present European conflict make it impossible for them to accept 
without modification the Declaration of London, you are requested to 
inform His Majesty's Government that in the circumstances the Gov- 
ernment of the United States feels obliged to withdraw its suggestion 
that the Declaration of London be adopted as a temporary code of 
naval warfare to be observed by belligerents and neutrals during the 
present war ; that therefore this Government will insist that the rights 
and duties of the United States and its citizens in the present war be 
defined by the existing rules of international law and the treaties of 
the United States irrespective of the provisions of the Declaration of 
London; and that this Government reserves to itself the right to 
enter a protest or demand in each case in which those rights and 
duties so defined are violated or their free exercise interfered with 
by the authorities of His Britannic Majesty's Government. 

Lansing. 
{Dip. Corr. 8.) 

No. 5. American note, October 24, 1914, similar to No. 4.* 

The Secretary of State ad interim to the American Ambassador at 
Berlin. 

Referring to Department's August 6, i p. m., and Embassy's October 
22, relative to the Declaration of London, Mr. Lansing instructs Mr. 
Gerard to inform the German Government that the suggestion of the 
department to belligerents as to the adoption of declaration for sake 
of uniformity as to a temporary code of naval warfare during the 
present conflict has been withdrawn because some of the belligerents 
are unwilling to accept the declaration without modifications and that 
this Government will therefore insist that the rights and duties of 
the Government and citizens of the United States in the present war 
be defined by existing rules of international law and the treaties of 
the United States without regard to the provisions of the declaration 
and that the Government of the United States reserves to itself the 
right to enter a protest or demand in every case in which the rights 
and duties so defined are violated or their free exercise interfered with 
by the authorities of the belligerent governments. 
{Dip. Corr. 8.) 

* Same to the American Embassies at Vienna, St. Petersburg and Paris, and to 
the American Legation at Brussels. 



8 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

No. 6. British proclamation, October 29, 1914, revising the 
list of contraband of war. 

Whereas, on the fourth day of August, 1914, We did issue Our 
Royal Proclamation specifying the articles which it was 'Our intention 
to treat as contraband of war during the war between Us and the 
German Emperor ; and 

Whereas, on the twelfth day of August, 19 14, We did by Our 
Royal Proclamation of that date extend Our Proclamation aforemen- 
tioned to the war between Us and the Emperor of Austria, King of 
Hungary; and 

Whereas on the twenty-first day of September, 19 14, We did by 
Our Royal Proclamation of that date make certain additions to the 
list of articles to be treated as contraband of war; and 

Whereas it is expedient to consolidate the said lists and to make 
certain additions thereto : 

Now, therefore. We do hereby declare, by and with the advice of 
Our Privy Council, that the lists of contraband contained in the 
schedules to Our Royal Proclamations of the fourth day of August 
and the twenty-first day of September aforementioned are hereby 
withdrawn, and that in lieu thereof during the continuance of the 
war or until We do give further public notice the articles enumerated 
in Schedule I hereto will be treated as absolute contraband, and the 
articles enumerated in Schedule II hereto will be treated conditional 
contraband. 

SCHEDULE I 

1. Arms of all kinds, including arms for sporting purposes, and their 
distinctive component parts. 

2. Projectiles, charges, and cartridges of all kinds, and their dis- 
tinctive component parts. 

3. Powder and explosives specially prepared for use in war. 

4. Sulphuric acid. 

5. Gun mountings, limber boxes, limbers, military wagons, field 
forges and their distinctive component parts. 

6. Range-finders and their distinctive component parts. 

7. Clothing and equipment of a distinctively military character, 

8. Saddle, draft, and pack animals suitable for use in war. 

9. All kinds of harness of a distinctively military character. 

10. Articles of camp equipment and their distinctive component 
parts. 

11. Armour plates. 

12. Haematite iron ore and haematite pig iron. 

13. Iron pyrites. 

14. Nickel ore and nickel. 

15. Ferrochrome and chrome ore. 

16. Copper, unwrought. 

17. Lead, pig, sheet, or pipe. 

18. Aluminium. 

19. Ferro-silica. 

20. Barbed wire, and implements for fixing and cutting the same. 

21. Warships, including boats and their distinctive component parts 
of such a nature that they can only be used on a vessel of war. 

22. Aeroplanes, airships, balloons, and aircraft of all kinds, and 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 9 

their component parts, together with accessories and articles recog- 
nizable as intended for use in connection with balloons and aircraft. 

23. Motor vehicles of all kinds and their component parts, 

24. Motor tires ; rubber. 

25. Mineral oils and motor spirit, except lubricating oils. 

26. Implements and apparatus designed exclusively for the manu- 
facture of munitions of war, for the manufacture or repair of arms, 
or war material for use on land and sea. 

SCHEDULE II 

1. Foodstuffs. 

2. Forage and feedings stuff for animals. 

3. Clothing, fabrics for clothing, and boots and shoes suitable for 
use in war. 

4. Gold and silver in coin or bullion ; paper money. 

5. Vehicles of all kinds, other than motor vehicles, available for 
use in war, and their component parts. 

6. Vessels, craft, and boats of all kinds; floating docks, parts of 
docks, and their component parts. 

7. Railway materials, both fixed and rolling stock, and materials 
for telegraphs, wireless telegraphs, and telephones. 

8. Fuel, other than mineral oils. Lubricants. 

9. Powder and explosives not specially prepared for use in war. 

10. Sulphur. 

11. Glycerine. 

12. Horseshoes and shoeing materials. 

13. Harness and saddlery. 

14. Hides of all kinds, dry or wet ; pigskins, raw or dressed ; leather, 
undressed or dressed, suitable for saddlery, harness, or military boots. 

15. Field glasses, telescopes, chronometers, and all kinds of nautical 
instruments. 

(Dip. Corr. 12, /?.) 

No. 7. British order in council, October 29, 1914, adopting 
the Declaration of London, exclusive of the lists of contraband 
and noncontraband, and inclusive of certain other modifications. 

Whereas by an Order in Council dated the 20th day of August, 1914, 
His Majesty was pleased to declare that during the present hostilities 
the Convention known as the Declaration of London should, subject 
to certain additions and modifications therein specified, be adopted 
and put in force by His Majesty's Government; and 

Whereas the said additions and modifications were rendered neces- 
sary by the special conditions of the present war ; and 

Whereas it is desirable and possible now to re-enact the said Order 
in Council with amendments in order to minimize, so far as possible, 
the interference with innocent neutral trade occasioned by the war : 

Now, therefore, His Majesty, by and with the advice of His Privy 
Council, is pleased to order, and it is hereby ordered, as follows : 

I. During the present hostilities the provisions of the Convention 
known as the Declaration of London shall, subject to the exclusion of 
the lists of contraband and noncontraband, and to the modifications 
hereinafter set out, be adopted and put in force by His Majesty's 
Government. 



10 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

The modifications are as follows : 

(i) A neutral vessel, with papers indicating a neutral destination, 
which, notwithstanding the destination shown on the pa- 
pers, proceeds to an enemy port, shall be liable to capture 
and condemnation if she is encountered before the end of 
her next voyage, 
(ii) The destination referred to in Article 33 of the said Declara- 
tion shall (in addition to the presumptions laid down in 
Article 34) be presumed to exist if the goods are consigned 
to or for an agent of the enemy State. 

(iii) Notwithstanding the provisions of Article 35 of the said Dec- 
laration, conditional contraband shall be liable to capture 
on board a vessel bound for a neutral port if the goods are 
consigned " to order," or if the ship's papers do not show 
who is the consignee of the goods, or if they show a con- 
signee of the goods in territory belonging to or occupied 
by the enemy. 

(iv) In the cases covered by the preceding paragraph (iii) it shall 
lie upon the owners of the goods to prove that their desti- 
nation was innocent. 

2. Where it is shown to the satisfaction of one of His Majesty's 
Principal Secretaries of State that the enemy Government is drawing 
supplies for its armed forces from or through a neutral country, he 
may direct that in respect of ships bound for a port in that country, 
Article 35 of the said Declaration shall not apply. Such direction 
shall be notified in the London Gazette and shall operate until the 
same is withdrawn. So long as such direction is in force, a vessel 
which is carrying conditional contraband to a port in that country 
shall not be immune from capture. 

3. The Order in Council of the 20th August, 1914, directing the 
adoption and enforcement during the present hostilities of the Con- 
vention known as the Declaration of London, subject to the additions 
and modifications therein specified, is hereby repealed. 

4. This Order may be cited as " the Declaration of London Order 
in Council, No. 2, 1914." 

And the Lords Commissioners of His Majesty's Treasury, the 
Lords Commissioners of the Admiralty, and each of His Majesty's 
Principal Secretaries of State, the President of the Probate, Divorce, 
and Admiralty Division of the High Court of Justice, all other Judges 
of His Majesty's Prize Courts, and all Governors, Officers, and Au- 
thorities whom it may concern, are to give the necessary directions 
herein as to them may respectively appertain. 
{Dip. Corr. ij, 14.) 

No. 8. Announcement of the British Admiralty, November 
2, 1914, declaring the North Sea a military area.* 

During the last week the Germans have scattered mines indis- 
criminately in the open sea, on the main trade route from America 
to Liverpool via the North of Ireland. 

Peaceful merchant ships have already been blown up, with loss 
of life, by this agency. 

The White Star Liner Olympic escaped disaster by pure luck and 

* Not printed in Dit^lonwtic Correspondence, etc. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA ii 

but for warnings given by British cruisers other British and neutral 
merchant and passenger vessels would have been destroyed. 

These mines cannot have been laid by any German ship of war. 
They have been laid by some merchant vessel flying a neutral flag, 
which has come along the trade route as if for purpose ^of peaceful 
commerce, and, while profiting to the full by the immunity enjoyed 
by neutral merchant ships, has wantonly and recklessly endangered 
the lives of all who travel on the sea. 

In these circumstances, having regard to the great interests in- 
trusted to the British navy, to the safety of peaceful commerce 
on the high seas, and to the maintenance within the limits of inter- 
national law of trade between neutral countries, the admiralty feels 
it necessary to adopt exceptional measures appropriate to the novel 
conditions under which this war is being waged. 

It therefore gives notice that the whole of the North Sea must 
be considered a military area. Within this area merchant shipping 
of all kinds, traders of all countries, fishing craft and all other vessels 
will be exposed to the gravest dangers from mines it has been neces- 
sary to lay and from warships searching vigilantly by night and day 
for suspicious craft. 

All merchant and fishing vessels of every description are hereby 
warned of the dangers they encounter by entering this area, except 
in strict accordance with admiralty directions. Every effort will be 
made to convey this warning to neutral countries and to vessels on 
the sea, but from November 5 onward the admiralty announces that all 
ships passing a line drawn from the northern point of the Hebrides 
through the Fame Islands to Iceland do so at their own peril. 

Ships of all countries wishing to trade to and from Norway, the 
Baltic, Denmark and Holland, are advised to come, if inward bound, 
by the English Channel and the Strait of Dover. There they will be 
given sailing directions which will pass them safely, so far as Great 
Britain is concerned, up the east coast of England to the Fame 
Islands, whence a safe route will, if possible, be given to Lindesnas 
Lighthouse. 

From this point tiiey should turn north or south, according to their 
destination, keeping as near the coast as possible. The converse 
applies to vessels outward bound. 

By strict adherence to these routes the commerce of all countries 
will be able to reach its destination in safety so far as Great Britain 
is concerned, but any straying even for a few miles from the course 
thus indicated may be followed by fatal consequences. 
(The New York Tribune, November 3, 1914.) 

No. 9. German note, November 23, 1914, regarding the 
British and French modifications of the Declaration of London.* 

The German Ambassador to the Secretary of State. 

According to an order in Council of August 20th, 1914, the British 
Government intends to act, during the present hostilities, in accord- 
ance with the provisions of the Declaration of London relative to 
the law of naval warfare of February 26th, 1909, subject to some 
additions and modifications. However, these additions and modifica- 
tions are of such a nature that they obliterate the said declaration in 



Sent also to other neutral powers. Text of American reply not yet published, 
imary in The New York Times, November 24, 19 14. 



ummary 



12 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

several vital points and, at the same time, encroach on the accepted 
rules of international law. Further modifications of great conse- 
quence are contained in the proclamation of September 21st, 1914. 

First. The most vital modifications of the Declaration of London 
are contained in the rule concerning conditional contraband under 
Nos. 3 and 5 of the above-mentioned Order in Council. 

Article 33 of the Declaration of London defines that there can be 
no question of conditional contraband except in the case where cargo 
is destined for the use of the administrative departments or the mili- 
tary forces of the hostile power. Moreover, according to Article 35 
the question whether goods are conditional contraband or not can 
under no circumstances arise when the vessel is sailing for a neutral 
port. 

The above provisions which are, in the main, in accordance with 
the accepted rules of international law and represent the outcome 
of the just weighing of the interests of the belligerents on the one 
side and of the neutral countries on the other side, are as good as 
annulled by the said Order in Council, for, according to its No. 3, the 
hostile destination of the cargo is to be presumed in every case where 
the consignee of the cargo is under the control of the authorities of 
the hostile State. This, however, means nothing else but that each 
and every cargo shipped to the hostile country is liable to be seized 
because all inhabitants of that country are under the control of the 
authorities. This rule is supplemented by No. 5 of the said order, 
which sets forth that all vessels on the voyage for neutral ports are 
liable to be seized for having conditional contraband on board. Thus, 
the rule of the continuous voyage, applicable only in the case of 
absolute contraband, is declared applicable also with regard to condi- 
tional contraband in contravention of Article 35 of the Declaration 
of London. In this manner the more lenient regulations with regard 
to conditional contraband, established by the Declaration of London, 
are simply set aside with the result that conditional contraband is 
virtually on the same footing as absolute contraband. In conse- 
quence the supply by neutrals of objects of conditional contraband, 
especially of foodstuffs, destined only for the consumption of the 
inhabitants of a belligerent country, which is universally considered 
legitimate in international law, is practically rendered illusory, 
whereby the interests of the belligerents as well as neutrals are 
violated in a manner contrary to the law of nations. 

As events at the theatres of naval warfare prove, England pro- 
ceeds in this respect in the most high-handed manner, even enforcing 
a control over supplies destined for the countries adjacent to Ger- 
many, and thereby endangering their victualing. 

Second. The British Government considers itself at liberty to 
totally disregard the lists of absolute contraband, and of merchandise 
not to be declared contraband (free list) contained in articles XXII, 
XXIV and XXVIII of the Declaration of London. In its definition 
of contraband of August 5, 1914, specially upheld by No. i of the 
said Order in Council, it has declared airships and parts thereof 
absolute contraband, while according to No. 8 of Article XXIV of 
the Declaration of London, such objects can only be regarded as 
conditional contraband. Above all, by proclamation of September 21, 
1914, it has declared rubber, hides and skins, as well as various kinds 
of iron ore, to be conditional contraband, although these articles are 
not all, or only in an indirect way, suitable for purposes of warfare, 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 13 

and were therefore placed in the free Hst. (Article XXVIII, Nos. 
3, 4 and 6.) In this manner the universally accepted principle of 
niternational law that neutral trade with ohjects for exclusively 
peaceful use must not be disturbed by the belligerents is wantonly 
set aside. 

Third. No. 2 of the said Order in Council contains a further aggra- 
vation of the rules concerning contraband. For Article 38 of the 
Declaration of London, in accordance with the accepted principle of 
international law, permits the seizure of a vessel for carrying con- 
traband only as long as such is on board the vessel ; whereas the 
British Government claims the right of seizing the vessel during its 
entire voyage, if carriage of contraband has taken place under false 
shipping documents. In this manner neutral shipping with the belligr 
erent territory is exposed to constant chicane, since vessels may be 
seized not only by reason of evident facts, viz., the existence of con- 
traband on board, but also by reason of a frequently not provable 
affirmation with regard to their previous acts. 

Fourth. By the rule established under No. 4 of the said Order in 
Council the right of seizure on account of blockade running is 
unduly extended, since according thereto knowledge of the blockade 
is to be assumed even in the case that, after a certain time since the 
notification of the blockade of an enemy port to the local authorities 
has elapsed, a vessel has sailed from another enemy port. By this 
rule, the British Government attempts, beyond the limits drawn by 
international law, to put the authorities of the hostile country into 
the service of the British naval forces, and to enforce this service by 
the capture of neutral vessels. 

Fifth. According to an acknowledged principle of international 
law, confirmed by the Declaration of London, only such persons trav- 
eling on board of merchant vessels are liable to be made prisoners 
of war as have already incorporated in the hostile military forces. 
This rule is clearly established by Article 45, No. 2, in conjunction 
with Article 47 of the Declaration of London, and is, moreover, 
treated in detail in the general report of the drafting committee of 
the Conference of London, in the first paragraphs to notes to 45. 
As it is set forth in the general report, for judicial reasons as well 
as for practical considerations, it was agreed at the conference that 
persons belonging to the active military forces, exclusively, shall 
be Hable to be made prisoners of war when travelling on neutral 
ships, not, however, persons who, in order to fulfil their military serv- 
ices, are returning to their country, as in the case of members of 
the reserve. Although the said Order in Council has acknowledged 
as binding the above-mentioned two articles, as well as the notes 
of the general report, the British naval forces have, nevertheless, 
seized on merchant vessels, sailing under the Dutch, Norw^egian, or 
Italian flag, German subjects liable to do military service, but not 
yet incorporated in the military forces, and made them prisoners of 
war. In this manner they have not only gravely violated the estab- 
lished principles of international law, as expressed in the Declaration 
of London, but also infringed on an act of their own legislation, i.e., 
the said Order in Council. • 

According to a decree of the President of the French Republic 
published in the lourjial OfFicicl of August 6, 1914. France has taken 
the same stand as Great Britain in the said Order in Council. 
Moreover, in the same manner as the British naval forces, the French 



14 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

naval forces have captured German persons liable to do military 
service, on neutral vessels, notably on Dutch and Spanish vessels. 

It is thus evident that the regulations issued by Great Britain and 
France, and even more so their respective naval forces, are disregard- 
ing in the most wanton way the provisions embodied in the Declara- 
tion of London relative to the law of naval warfare. 

It is Great Britain's acknowledged aim to hit not only the military, 
but also the commercial power of their adversaries, by way of 
paralyzing neutral trade, and in pursuing this purpose they encroach 
in an unjustifiable manner, not only upon the legitimate commerce 
between the neutrals and the enemy, but also upon the commerce 
among the neutral countries themselves. It is true that, thus far, the 
Declaration of London has not been ratified. However, in its pre- 
amble it has been specially acknowledged by the delegates of all its 
signatory powers, including those of Great Britain and France, that, 
in the main, the provisions of the Declaration of London are in 
accordance with the generally acknowledged principles of international 
law, which must be considered much more serious, because in the 
course of former wars in which she was neutral, notably in the Russo- 
Japanese War, Great Britain has always protested most emphatically 
against violations of international law of the indicated order. (See 
the British Blue Book, Russia No. i, 1903, correspondence respecting 
contraband of war, page 8, etc.) 

The Imperial German government has thus far strictly observed the 
Declaration of London and has embodied the contents of its provi- 
sions in the German prize court regulations of September 30, 1914 
(cf. Reichsgesetzhlatt, 1914, page 275). It has not changed this atti- 
tude even in view of the flagrant violations of law committed by its 
adversaries. 

However, The Imperial German Government must now study the 
question whether it will be able to continue to maintain the above 
attitude if the enemy powers abide by the procedure observed by 
them, and if the neutral powers allow such violations of the principles 
of neutrality to go on to the detriment of German interest. 

The Imperial German Government considers it, therefore, of 
interest to learn which position the neutral powers intend to take 
toward the attitude adopted by Great Britain and France contrary to 
international law, and particularly whether it is their intention to 
take measures against the acts of violence committed on board their 
merchant vessels against German subjects and German property. 
{The New York Times, November 24, 191 4.) 

No. 10. British proclamation, December 23, 1914, again re- 
vising the list of contraband of war.* 

Whereas on the 4th day of August, 1914, we did issue our royal 
proclamation specifying the articles which it was our intention to 
treat as contraband of war during the war between us and the German 
Emperor; and 

Whereas on the 12th day of August, 1914, we did by our royal 
proclamation of that date extend our proclamation aforementioned to 
the war between us and the Emperor of Austria, King of Hungary; 
and 

Whereas on the 21st day of September, 1914, we did by our royal 

* See No. 6. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 15 

proclamation of that date make certain additions to the hst of articles 
to be treated as contraband of war; and 

Whereas on the 29th day of October, 1914, we did by our royal 
proclamation of that date withdraw the said lists of contraband and 
substitute therefor the lists contained in the schedules to the said 
proclamation ; and 

Whereas it is expedient to make certain alterations in and additions 
to the said lists: 

Now, therefore, we do hereby declare, by and with the advice ot our 
Privy Council, that the lists of contraband contained in the schedules 
to our royal proclamation of the twenty-ninth day of October afore- 
mentioned are hereby withdrawn, and that in lieu thereof during the 
continuance of the war or until we do give further public notice the 
articles enumerated in Schedule I hereto will be treated as absolute 
contraband, and the articles enumerated in Schedule II hereto will 
be treated as conditional contraband. 

SCHEDULE I 

1. Arms of all kin'ds, including arms for sporting purposes, and 
their distinctive component parts. . ,, , . 1 , .1 • ^■ 

2. Projectiles, charges, and cartridges of all kinds and their dis- 
tinctive component parts. 

-i Powder and explosives specially prepared for use in war. 

4 Ingredients of explosives, viz., nitric acid, sulphuric acid, g ycer- 
ine acetmie, calcium acetate and all other metallic acetates sulphur, 
potassium nitrate, the fractions of the distillation products of coal tar 
between benzol and cresol, inclusive, aniline, methylaninie, dimethy- 
laniline, ammonium perchlorate, sodium perchlorate, sodium ch ora e, 
barium chlorate, ammonium nitrate, cyanamide, potassium chlorate, 
calcium nitrate, mercury. . . . 

q Resinous products, camphor, and turpentine (oil and spirit). 

6. Gun mountings, limber boxes, limbers, military wagons, held 
for<^es and their distinctive component parts. 

7 Rano-e-finders and their distinctive component parts 

8 Clothing and equipment of a distinctively military character. 
q" Saddle, draught, and pack animals suitable for use in war. 

10 All kinds of harness of a distinctively military character. 

II.' Articles of camp equipment and their distinctive component 

parts. 

12. Armour plates. ^ 

13. Ferro alloys, including ferro-tungsten, ferro-molybdcnum, fcrro- 
mano-anese, ferro-vanadium, ferro-chrome. 

14 The following metals: Tungsten, molybdenum, vanadium, 
nickel, selenium, cobalt, haematite pig-iron, manganese 

iq The following ores: Wolframite, scheehte, molybdenite, man- 
ganese ore, nickel ore, chrome ore, hcxmatite iron ore, zinc ore, lead 
ore, bauxite. , , . . 

16. Aluminium, alumina, and salts of a uminium. ,• ^,. . 

17 Antimony, together with the sulphides and oxides of antimony. 

18. Copper, unwrought and part wrought, and copper wire. 

TO Lead, pig. sheet, or pipe. . 

20 Barbed wire, and implements for fixing and cutting the same. 

21' Warships, inchuling boats and their distinctive component parts 
of such a nature that they can only be used on a vessel of war. 



i6 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

22. Submarine sound signaling apparatus. 

23. Aeroplanes, airships, balloons, and aircraft of all kinds, and 
their component parts, together with accessories and articles recog- 
nizable as intended for use in connection with balloons and aircraft. 

24. Motor vehicles of all kinds and their component parts. 

25. Tires for motor vehicles and for cycles, together with articles 
or materials especially adapted for use in the manufacture or repair 
of tires. 

26. Rubber (including raw, waste, and reclaimed rubber) and goods 
made wholly of rubber. 

27. Iron pyrites. 

28. Mineral oils and motor spirit, except lubricating oils. 

29. Implements and apparatus designed exclusively for the manu- 
facture of munitions of war, for the manufacture or repair of arms, 
or war material for use on land and sea. 

SCHEDULE II 

1. Foodstuffs. 

2. Forage and feeding stuffs for animals. 

3. Clothing, fabrics for clothing, and boots and shoes suitable for 
use in war. 

4. Gold and silver in coin or bullion ; paper money. 

5. Vehicles of all kinds, other than motor vehicles, available for 
use in war, and their component parts. 

6. Vessels, craft, and boats of all kinds ; floating docks, parts of 
docks, and their component parts. 

7. Railway materials, both fixed and rolling stock, and materials 
for telegraphs, wireless telegraphs, and telephones. 

8. Fuel, other than mineral oils. Lubricants. 

9. Powder and explosives not specially prepared for use in war. 

10. Horseshoes and shoeing materials. 

11. Harness and saddlery. 

12. Hides of all kinds, dry or wet; pigskins, raw or dressed; leather, 
undressed or dressed, suitable for saddlery, harness, or military boots. 

13. Field glasses, telescopes, chronometers, and all kinds of nautical 
instruments. 

{Dip. Corr. 15, 16.) 

No. II. American note, December 26, 1914, in reference 
to the seizure and detention of American cargoes destined for 
neutral European ports.* 

The Secretary of State to the American Ambassador at London. 

The present condition of American foreign trade resulting from the 
frequent seizures and detentions of American cargoes destined to 
neutral European ports has become so serious as to require a candid 
statement of the views of this Government in order that the British 
Government may be fully informed as to the attitude of the United 
vStates toward the policy which has been pursued by the British au- 
thorities during the present war. 

you will, therefore, communicate the following to His Majesty's 
principal secretary of state for foreign affairs, but in doing so you will 
assure him that it is done in the most friendly spirit and in the belief 

* Delivered, at London, December 28 and published three days later. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 17 

that frankness will better serve the continuance of cordial relations 
between the two countries than silence, which may be misconstrued 
into acquiescence in a course of conduct which this Government can- 
not but consider to be an infringement upon the rights of American 
citizens. 

The Government of the United States has viewed with growing con- 
cern the large number of vessels laden with American goods destined 
to neutral ports in Europe, which have been seized on the high seas, 
taken into British ports and detained sometimes for weeks by the 
British authorities. During the early days of the war this Govern- 
ment assumed .that the policy adopted by the- British Government was 
due to the unexpected outbreak of hostilities and the necessity of 
immediate action to prevent contraband from reaching the enemy. 
For this reason it was not disposed to judge this policy harshly or 
protest it vigorously, although it was manifestly very injurious to 
American trade with the neutral countries of Europe. This Govern- 
ment, relying confidently upon the high regard which Great Britain 
has so often exhibited in the past for the rights of other nations, confi- 
dently awaited amendment of a course of action which denied to 
neutral commerce the freedom to which it was entitled by the law of 
nations. 

This expectation seemed to be rendered the more assured by the 
statement of the foreign office early in November that the British 
Government were satisfied with guarantees offered by the Norwegian, 
Swedish, and Danish Governments as to nonexportation of contraband 
goods when consigned to named persons in the territories of those 
Governments, and that orders had been given to the British fleet and 
customs authorities to restrict interference with neutral vessels carry- 
ing such cargoes so consigned to verification of ship's papers and 
cargoes. 

It is therefore a matter of deep reo-ret that, though nearly five 
months have passed since the war began, the British Government have 
not materially changed their policy and do not treat less rigorously 
ships and cargoes passing between neutral ports in the peaceful pursuit 
of lawful commerce, which belligerents should protect rather than 
interrupt. The greater freedom from detention and seizure which 
was confidently expected to result from consigning shipments to 
definite consignees, rather than " to order," is still awaited. 

It is needless to point out to His Majesty's Government, usually the 
champion of the freedom of the seas and the rights of trade, that 
peace, not war, is the normal relation between nations and that the 
commerce between countries which are not belligerents should not be 
interfered with by those at war unless such interference is mani- 
festly an imperative necessity to protect their national safety, and 
then only to the extent that it is a necessity. It is with no lack of 
appreciation of the momentous nature of the present struggle in which 
Great Britain is engaged and with no selfish desire to gain undue 
commercial advantage that this Government is reluctantly forced to 
the conclusion that the present policy of His Majesty's Government 
toward neutral ships and cargoes exceeds the manifest necessity of 
a belligerent and constitutes restrictions upon the rights of American 
citizens on the high seas which are not justified by the rules of inter- 
national law or required under the principle of self-preservation. 

The Government of the United States does not intend at this time 
to discuss the propriety of including certain articles in the lists of 



i8 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

absolute and conditional contraband, which have been proclaimed by 
His Majesty. Open to oljjection as some of these seem to this Gov- 
ernment, the chief ground of present complaint is the treatment of 
cargoes of both classes of articles when bound to neutral ports. 

Articles listed as absolute contraband, shipped from the United 
States and consigned to neutral countries, have been seized and de- 
tained on the ground that the countries to which they were destined 
have not prohibited the exportation of such articles. Unwarranted 
as such detentions are, in the opinion of this Government, American 
exporters are further perplexed by the apparent indecision of the 
British authorities in applying their own rules to neutral cargoes. 
For example, a shipment of copper from this country to a specified 
consignee in Sweden was detained because, as was stated by Great 
Britain, Sweden had placed no embargo on copper. On the other 
hand, Italy not only prohibited the export of copper, but, as this Gov- 
ernment is informed, put in force a decree that shipments to Italian 
consignees or " to order," which arrive in ports of Italy cannot be 
exported or transshipped. The only exception Italy makes is of cop- 
per which passes through that country in transit to another country. 
In spite of these decrees, however, the British Foreign Office has 
thus far declined to affirm that copper shipments consigned to Italy 
will not be molested on the high seas. Seizures are so numerous and 
delays so prolonged that exporters are afraid to send their copper to 
Italy, steamship lines decline to accept it, and insurers refuse to issue 
policies upon it. In a word, a legitimate trade is being greatly im- 
paired through uncertainty as to the treatment which it may expect at 
the hands of the British authorities. 

We feel that we are abundantly justified in asking for information 
as to the manner in which the British Government propose to carry 
out the policy which they have adopted, in order that we may deter- 
mine the steps necessary to protect our citizens, engaged in foreign 
trade, in their rights and from the serious losses to which they are 
liable through ignorance of the hazards to which their cargoes are 
exposed. 

In case of conditional contraband the policy of Great Britain ap- 
pears to this Government to be equally unjustified by the established 
rules of international conduct. As evidence of this, attention is 
directed to the fact that a number of the American cargoes which 
have^ been seized consist of foodstuffs and other articles of common 
use in all countries which are admittedly relative contraband. In 
spite of the presumption of innocent use because destined to neutral 
territory, the British authorities made these seizures and detentions 
without, so far as we are informed, being in possession of facts which 
warranted a reasonable belief that the shipments had in reality a 
belligerent destination, as that term is used in international law. 
Mere suspicion is not evidence and doubts should be resolved in favor 
of neutral commerce, not against it. The effect upon trade in these 
articles between neutral nations resulting from interrupted voyages 
and detained cargoes is not entirely cured by reimbursement of the 
owners for the damages, which they have suffered, after investigation 
has failed to establish an enemy destination. The injury is to Amer- 
ican commerce with neutral countries as a whole through the hazard 
of the enterprise and the repeated diversion of goods from established 
markets. 

It also appears that cargoes of this character have been seized by 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 19 

the British authorities because of a beHef that, though not originally 
so intended by the shippers, they will ultimately reach the territory 
of the enemies of Great Britain. Yet this belief is frequently re- 
duced to a mere fear in view of the embargoes which have been 
decreed by the neutral countries, to which they are destined, on the 
articles composing the cargoes. 

That a consignment " to order " of articles listed as conditional 
contraband and shipped to a neutral port raises a legal presumption 
of enemy destination appears to be directly contrary to the doctrines 
previously held by Great Britain and thus stated by Lord Salisbury 
during the South African War: 

" Foodstuffs, though having a hostile destination, can be considered 
as contraband of war only if they are for the enemy's forces; it is 
not sufficient that they are capable of being so used, it must be shown 
that this was in fact their destination at the time of their seizure." 

With this statement as to conditional contraband the views of this 
Government are in entire accord, and upon this historic doctrine, con- 
sistently maintained by Great Britain when a belligerent as well as a 
neutral, American shippers were entitled to rely. 

The Government of the United States readily admits the full right 
of a belligerent to visit and search on the high seas the vessels of 
American citizens or other neutral vessels carrying American goods 
and to detain them when there is sufficient evidence to justify a belief 
that contraband articles are in their cargoes; but His Majesty's Gov- 
ernment, judging by their own experience in the past, must realize that 
this Government cannot without protest permit American ships or 
American cargoes to be taken into British ports and there detained 
for the purpose of searching generally for evidence of contraband, 
or upon presumptions created by special municipal enactments which 
are clearly at variance with international law and practice. 

This Government believes, and earnestly hopes His Majesty's Gov- 
ernment will come to the same belief, that a course of conduct more 
in conformity with the rules of international usage, which Great 
Britain has strongly sanctioned for many years, will in the end 
better serve the interests of belligerents as well as those of neutrals. 

Not only is the situation a critical one to the commercial interests 
of the United States, but many of the great industries of this coun- 
try are suffering because their products are denied long-established 
markets in European countries, which, though neutral, are contiguous 
to the nations at war. Producers and exporters, steamship and insur- 
ance companies are pressing, and not without reason, for relief from 
the menace to trans-Atlantic trade which is gradually but surely 
destroying their business and threatening them with financial disaster. 

The Government of the United States, still relying upon the deep 
sense of justice of the British Nation, which has been so often mani- 
fested in the intercourse between the two countries during so many 
years of uninterrupted friendship, expresses confidently the hope that 
His Majesty's Government will realise the obstacles and difficulties 
which their present policy has placed in the way of commerce be- 
tween the United ftatcs and the neutral countries of Europe, and 
will instruct its officials to refrain from all unnecessary interference 
with the freedom of trade between nations which are sufferers, though 
not participants, in the present conflict ; and will in their treatment 



20 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

of neutral ships and cargoes conform more closely to those rules 
governing the maritime relations between belligerents and neutrals, 
which have received the sanction of the civilized world, and which 
Great Britain has, in other wars, so strongly and successfully advo- 
cated. 

In conclusion, it should be impressed upon His Majesty's Govern- 
ment that the present condition of American trade with the neutral 
European countries is such that, if it does not improve, it may arouse 
a feeling contrary to that wdiich has so long existed between the 
American and British peoples. Already it is becoming more and 
more the subject of public criticism and complaint. There is an 
increasing belief, doubtless not entirely unjustified, that the present 
British policy toward American trade is responsible for the depression 
in certain industries which depend upon European markets. The 
attention of the British Government is called to this possible result 
of their present policy to show how widespread the effect is upon the 
industrial life of the United States and to emphasize the importance 
of removing the cause of complaint. 

Bryan. 
{Dip. Corr. 39-41.) 

No. 12. British note, January 7, 19 15, replying tentatively 
to No. II. 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

Your Excellency: I have the honor to acknowledge receipt of 
your note of the 28th of December. 

It is being carefully examined and the points raised in it are receiv- 
ing consideration, as the result of which a reply shall be addressed 
to Your Excellency, dealing in detail with the issues raised and the 
points to which the United States Government have drawn attention. 
This consideration and the preparation of the reply will necessarily 
require some time, and I therefore desire to send without further 
delay some preliminary observations which will, I trust, help to clear 
the ground and remove some misconceptions that seem to exist. 

Let me say at once that we entirely recognize the most friendly 
spirit referred to by Your Excellency, and that we desire to reply in 
the same spirit and in the belief that, as Your Excellency states, 
frankness will best serve the continuance of cordial relations between 
the two countries. 

^ His Majesty's Government cordially concur in the principle enun- 
ciated by the Government of the United States that a belligerent, 
in dealing with trade between neutrals, should not interfere unless 
such interference is necessary to protect the belligerent's national 
safety, and then only to the extent to which this is necessary. We 
shall endeavour to keep our action within the limits of this principle 
on the understanding that it admits our right to interfere when such 
interference is, not with " bona fide " trade between the United States 
and another neutral country, but with trade in contraband destined 
for the enemy's country, and we are ready, whenever our action may 
unintentionally exceed this principle, to make redress. 

We think that much misconception exists as to the extent to which 
we have, in practice, interfered with trade. Your Excellency's note 
seems to hold His Majesty's Government responsible for the present 



I 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 21 

condition of trade with neutral countries, and it is stated that, through 
the action of His Majesty's Government, the prockicts of the great 
industries of the United States have hecn denied long estahlished 
markets in European countries which, though neutral, are contiguous 
to the seat of vv^ar. Such a result is far from heing the intention of 
His Majesty's Government, and they would exceedingly regret that 
it should be due to their action. I have been unable to obtain com- 
plete or conclusive figures showing what the state of trade with these 
neutral countries has been recently, and I can therefore only ask 
that some further consideration should be given to the question 
whether United States trade with these neutral countries has been 
so seriously affected. The only figures as to the total volume of trade 
that I have seen are those for the exports from New York, for the 
month of November, 1914, and they are as follows, compared with 
the month of November, 1913: 

Exports from Nczv York for November, 1913 [omi'\ November, 1914, 

respeetively. 

Denmark $ 558,000 $7,101,000 

Sweden 377,000 2,858,000 

Norway 477,000 2.318,000 

Italy 2,971,000 4,781,000 

Holland 4,389,000 3,960,000 

It is true that there may have been a falling off in cotton exports, 
as to which New York figures would be no guide, but His Majesty's 
Government have been most careful not to interfere with cotton, and 
its place on the free list has been scrupulously maintained. 

We do not wish to lay too much stress upon incomplete statistics; 
the figures above are not put forward as conclusive; and we are pre- 
pared to examine any further evidence with regard to the state of 
trade with these neutral countries, which may point to a different 
conclusion or show that it is the action of His Majesty's Government 
in particular, and not the existence of a state of war and consequent 
diminution of purchasing power and shrinkage of trade, which is 
responsible for adverse effects upon trade with the neutral countries. 

That the existence of a state of war on such a scale has had a very 
adverse effect upon certain great industries, such as cotton, is obvious; 
but it is submitted that this is due to the general cause of diminished 
purchasing power of such countries as France. Germany, and the 
United Kmgdom, rather than to interference with trade with neutral 
countries. In the matter of cotton, it may be recalled that the British 
Government gave special assistance through the Liverpool Cotton 
Exchange to the renewal of transactions in the cotton trade of not 
only the United Kingdom but of many neutral countries. 

Your Excellency's note refers in particular to the detention of 
copper. The figures taken from official returns for the export of 
copper from the United States for Italy for the months during which 
the war has been in progress up to the end of the first three weeks of 
December are as follows: 

Nineteen thirteen: Fifteen million two hundred two thousand 
pounds. Nineteen fourteen : Thirty-six million two hundred eighty- 
five thousand pounds. Norway, Sweden, Denmark, and Switzerland 
are not shown separately for the whole period in the United States 



22 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

returns but are included in the heading " Other Europe " (that is, 
Europe other than the United Kingdom, Russia, France, Belgium, 
Austria, Germany, Holland, and Italy). The corresponding figures 
under this heading are as follows : 

Nineteen thirteen: Seven million two hundred seventy-one thou- 
sand pounds. Nineteen fourteen : Thirty-five million three hundred 
forty-seven thousand pounds. 

With such figures the presumption is very strong that the bulk of 
copper consigned to these countries has recently been intended, not 
for their own use, but for that of a belligerent who cannot import it 
direct. It is therefore an imperative necessity for the safety of this 
country while it is at war that His Majesty's Government should 
do all in their power to stop such part of this import of copper as is 
not genuinely destined for neutral countries. 

Your Excellency does not quote any particular shipment of copper 
to Sweden, which has been detained. There are, however, four con- 
signments to Sweden at the present time of copper and aluminium 
which, though definitely consigned to Sweden, are, according to posi- 
tive evidence in the possession of His Majesty's Government, definitely 
destined for Germany. 

I cannot believe that, with such figures before them and in such 
cases as those just mentioned, the Government of the United States 
would question the propriety of the action of His Majesty's Govern- 
ment in taking suspected cargoes to a prize court, and we are con- 
vinced that it cannot be in accord with the wish either of the Govern- 
ment or of the people of the United States to strain the international 
code in favour of private interests so as to prevent Great Britain from 
taking such legitimate means for this purpose as are in her power. 

With regard to the seizure of foodstuffs to which Your Excellency 
refers, His Majesty's Government are prepared to admit that food- 
stuffs should not be detained and put into a prize court without pre- 
sumption that they are intended for the armed forces of the enemy 
or the enemy government. We believe that this rule has been ad- 
hered to in practice hitherto, but if the United States Government 
have instances to the contrary, we are prepared to examine them, 
and it is our present intention to adhere to the rule, though we cannot 
give an unlimited and unconditional undertaking in view of the de- 
parture by those against whom we are fighting from hitherto accepted 
rules of civilization and humanity and the uncertainty as to the extent 
to which such rules may be violated by them in future. 

From the 4th of August last to the 3d of January the number of 
steamships proceeding from the United States for Holland, Denmark, 
Norway, Sweden, and Italy has been seven hundred and 'seventy- 
three. Of these there are forty-five which have had consignments or 
cargoes placed in the prize court while of the ships themselves only 
eight have been placed in the prize court and one of these has since 
been released. It is, however, essential under modern conditions that 
where there is real ground for suspecting the presence of contraband, 
the vessels should be brought into port for examination: in no other 
way can the right of search be exercised, and but for this practice 
it would have to be completely abandoned. Information was received 
by us that special instructions had been given to ship rubber from the 
United States under another designation to escape notice, and such 
cases have occurred in several instances. Only by search in a port 
can such cases, when suspected, be discovered and proved. The 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 23 

necessity for examination in a port may also be illustrated by a 
hypothetical instance, connected with cotton, which has not yet oc- 
curred. Cotton is not specifically mentioned in Your Excellency's 
note, but I have seen public statements made in the United States 
that the attitude of His Majesty's Government with regard to cotton 
has been ambiguous, and thereby responsible for depression in the 
cotton trade. There has never been any foundation for this allega- 
tion. His Majesty's Government have never put cotton on the list 
of contraband; they have throughout the war kept it on the free list; 
and, on every occasion when questioned on the point, they have 
stated their intention of adhering to this practice. But information 
has reached us that precisely because we have declared our intention 
of not interfering with cotton, ships carrying cotton will be specially 
selected to carry concealed contraband; and we have been warned 
that copper will be concealed in bales of cotton. Whatever suspicions 
we have entertained, we have not so far made these a ground for 
detaining any ship carrying cotton ; but, should we have information 
giving us real reason to believe in the case of a particular ship that 
the bales of cotton concealed copper or other contraband, the only 
way to prove our case would be to examine and weigh the bales ; a 
process that could be carried out only by bringing the vessel into a 
port. In such a case, or if examination justified the action of His 
Majesty's Government, the case shall be brought before a prize court 
and dealt with in the ordinary way. 

That the decisions of British prize courts hitherto have not been 
unfavourable to neutrals is evidenced by the decision in the Miramichi 
case. This case, which was decided against the Crown, laid down 
that the American shipper was to be paid even when he had sold a 
cargo c. i. f. and when the risk of loss after the cargo had been 
shipped did not apply to him at all. 

It has further been represented to His Majesty's Government, 
though this subject is not dealt with in Your Excellency's note, that 
our embargoes on the export of some articles, more especially rubber, 
have interfered with commercial interests in the United States. It 
is, of course, difficult for His Majesty's Government to permit the 
export of rubber from British Dominions to the United States at a 
time when rubber is essential to belligerent countries for carrying 
on the war, and when a new trade in exporting rubber from the 
United States in suspiciously large quantities to neutral countries has 
actually sprung up since the war. It would be impossible to permit 
the export of rubber from Great Britain unless the right of His 
Majesty's Government were admitted to submit to a prize court car- 
goes of rubber exported from the United States which they believe to 
be destined for an enemy country, and reasonable latitude of action 
for this purpose were conceded. But His Majesty's Government 
have now provisionally come to an arrangement with the rubber 
exporters in Great Britain which will permit of licenses being given 
under proper guaranties for the export of rubber to the United States. 

We are confronted with the growing danger that neutral countries 
contiguous to the enemy will become on a scale hitherto unprecedented 
a base of supplies for the armed forces of our enemies and for ma- 
terials for manufacturing armament. The trade figures of imports 
show how strong this tendency is, but we have no complaint to make 
of the attitude of the Governments of those countries, which so far 
as we are aware have not departed from proper rules of neutrality. 



24 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

We endeavor in the interest of our own national safety to prevent 
this danger by intercepting goods really destined for the enemy with- 
out interfering with those which are " bona fide " neutral. 

Since the outbreak of the war the Government of the United States 
have changed their previous practice and have prohibited the publi- 
cation of manifests till 30 days after the departure of vessels from 
the United States ports. We had no " locus standi " for complain- 
ing of this change, and did not complain. But the effect of it must 
be to increase the difficulty of ascertaining the presence of contra- 
band and to render necessary in the interests of our national safety 
the examination and detention of more ships than would have been 
the case if the former practice had continued. 

Pending a more detailed reply, I would conclude by saying that 
His Majesty's Government do not desire to contest the general prin- 
ciples of law, on which they understand the note of the United States 
to be based, and desire to restrict their action solely to interferences 
with contraband destined for the enemy. His Majesty's Government 
are prepared, whenever a cargo coming from the United States is 
detained, to explain the case on which such detention has taken place 
and would gladly enter into any arrangement by which mistakes can 
be avoided and reparation secured promptly when any injury to the 
neutral owners of a ship or cargo has been improperly caused, for 
they are most desirous in the interest both of the United States and 
of other neutral countries that British action should not interfere 
with the normal importation and use by the neutral countries of goods 
from the United States. 

I have, etc., 

E. Grey. 
{Dip. Corr. 41-44.) 

No. 13. Summary of proclamation of the German Federal 
Council, January 25, 191 5, in reference to foodstuffs. 

Available supplies in the empire of wheat, rye, both unmixed and 
mixed with other products, also unthreshed, are seized for war. 
Grain company limited, and wheat, rye, oats, and barley flour are 
seized for the municipality or district where the products are found. 
Flour in transportation is to be seized for the municipahty in the dis- 
trict of destination. 

Exempted from seizure are supplies belonging to the Government's 
naval or military departments, municipalities, war grain company, 
central purchasing company, or individual amounts of flour of threshed 
grain not exceeding together 220 pounds. 

Attached supplies may not be touched, and legal proceedings in 
their regard are null and void. The feeding of animals with such 
supplies is particularly forbidden. Owners must take the necessary 
steps to conserve their supplies. 

Sales to the war grain company and to municipalities are allowed. 
Sales from one municipality to another require the consent of higher 
administrative authorities and must be reported to the central dis- 
tributing bureau. An agriculturist may, however, give his employers 
nine kilos of breadstuffs per month each, and may keep sufficient seed 
for sowing. 

The Admiralty mills are to fulfil contracts for February, 191 5, and 
deliver flour. Dealers and private mills may sell up to half of the 
flour bought from January i to 15. Bakers may prepare three quar- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 25 

ters of the average daily consumption of January i to 15. The same 
applies to flour not seized. 

Infringements are punishable with one year's imprisonment or 
10,000 marks fine. Persons having, on February i, supplies of mate- 
rials mentioned, and oats, must report the amount and ownership. 
The supplies of seeds must be particularly given. The war grain 
company and the central purchasing company need not make a re- 
port. The Government and military supplies must also be reported. 
Bakers and mills must report how much is used from January i to 
January 15 and the changes in stores. Verification by officials is per- 
mitted. 

Competent authorities will regulate the process of dispossession. 
An adequate price must be paid, but the stores not reported are not 
paid for when taken. The person dispossessed must look after the 
materials until the dispossessor is ready to take the same over. For 
this the person dispossessed obtains recompense. Attachment and dis- 
possession apply also to straw of unthreshed grain. 

The war grain company on request is bound to supply to the mu- 
nicipality a part of all grain allotted to the district of the latter or to 
transfer the title in said grain. It is also bound to take over seized 
flour at the request of the municipality for the latter as far as pos- 
sible and to oversee the sale of the same. It is also bound, at the 
wish of the municipality, to keep the quantity of the grain in the 
district up to the amount assigned and to give it to be milled by the 
district mills. 

The mills will grind the grain given by the war grain company and 
by the central purchasing company or by the municipality. 

Payment for grinding is set by the Government officials. Mills may 
deliver the flour and their property only to the war grain company or 
to the municipality. The war grain company may furnish flour to the 
nuuiicipalities, army or navy authorities only. The price is subject 
to regulation by the Government officials. 

Bran from such grain is to be delivered per Government orders, 
and price fixed for same. An imperial distribution office is estab- 
lished to apportion with the help of the war grain company the exist- 
ing supplies until the next harvest. 

A body composed of sixteen members of the Bynfesrat (sic) 
[Bundesrat, i.e., Federal Council] and one member each of the German 
Agricultural Advisory Boards and the German National Chamber 
of Commerce and the Municipal Association. The municipalities 
must furnish to this body facts regarding their grain supplies. 

Municipalities will regulate the amount used of supplies in their 
district, particularly the amounts given to bakers and retailers, but 
within the limit set by the central distril)uting bureau. Municipalities 
can also prescribe all rules and regulations for making and selling 
bread. Municipalities receive a bonus of ten per cent, of the value 
of the amount returned of the unused quantity allotted them for any 
stated period. These bonuses to be used for food for people. Munic- 
ipalities will fix the prices for flour assigned by them. 

The foregoing regulations do not apply to the grain and flour im- 
ported after January 31, 1915. Imported grain and flour may be 
given over by importers only to the war grain company, the central 
purchasing company, or the municipalities. 

Cities and communities of more than 5,000 souls are to take meas- 
ures for conservation of meat and arrange for the supply of preserved 



26 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



1 



meat. To this end communities may take over the ownership of 
swine and fix the price therefor. 

{The New York Times, February 18, 1915.) 

No. 14. Announcement of the German Admiralty, February 
4, 19 1 5, declaring the waters around Great Britain a war zone. 

1. The waters surrounding Great Britain and Ireland including the 
whole English channel are hereby declared to be war zone. On and 
after the i8th of February, 191 5, every enemy merchant ship found 
in the said war zone will be destroyed without its being always pos- 
sible to avert the dangers threatening the crews and passengers on 
that account. 

2. Even neutral ships are exposed to danger in the war zone as in 
view of the misuse of neutral flags ordered on January 31 by the 
British Government and of the accidents of naval war, it cannot 
always be avoided to strike even neutral ships in attacks that are 
directed at enemy ships. 

3. Northward navigation around the Shetland Islands, in the eastern 
waters of the North Sea and in a strip of not less than 30 miles 
width along the Netherlands coast is in no danger. 

{Dip. Corr. 52-53.) 

No. 15. Memorandum of the German Government, Febru- 
ary 4, 191 5, regarding the declaration of a war zone. 

Since the commencement of the present war Great Britain's con- 
duct of commercial warfare against Germany has been a mockery of 
all the principles of the law of nations. While the British Govern- 
ment have by several orders declared that their naval forces should 
be guided by the stipulations of the Declaration of London, they have 
in reality repudiated this Declaration in the most essential points, 
notwithstanding the fact that their own delegates at the Maritime 
Conference of London acknowledged its acts as forming part of 
existing international law. The British Government have placed a 
number of articles on the contraband list which are not at all, or 
only very indirectly, capable of use in warfare, and consequently can- 
not be treated as contraband either under the Declaration of London 
or under the generally acknowledged rules of international law. In 
addition, they have in fact obliterated the distinction between abso- 
lute and conditional contraband by confiscating all articles of condi- 
tional contraband destined for Germany, whatever may be the port 
where these articles are to be unloaded, and without regard to whether 
they are destined for uses of war or peace. They have not even 
hesitated to violate the Declaration of Paris, since their naval forces 
have captured on neutral ships German property which was not con- 
traband of war. Furthermore, they have gone further than their 
own orders respecting the Declaration of London and caused numerous 
German subjects capable of bearing arms to be taken from neutral 
ships and made prisoners of war. Finally, they have declared the 
North Sea in its whole extent to be the seat of war, thereby rendering 
difficult and extremely dangerous, if not impossible, all navigation on 
the high seas between Scotland and Norway, so that they have in a 
way established a blockade of neutral coasts and ports, which is 
contrary to the elementary principles of generally accepted interna- 
tional law. Clearly all these measures are part of a plan to strike not 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 27 

only the German military operations but also the economic system 
of Germany, and in the end to deliver the whole German people to 
reduction by famine, by intercepting legitimate neutral commerce 
by methods contrary to international law. 

The neutral powers have in the main acquiesced in the measures 
of the British Government; in particular they have not been success- 
ful in securing the release by the British Government of the German 
subjects and German merchandise illegally taken from their vessels. 
To a certain extent they have even contributed toward the execution 
of the measures adopted by England in defiance of the principle of 
the freedom of the seas by prohibiting the export and transit of 
goods destined for peaceable purposes in Germany, thus evidently 
yielding to pressure by England. The German Government have 
in vain called the attention of the neutral powers to the fact that 
Germany must seriously question whether it can any longer adhere 
to the stipulations of the Declaration of London, hitherto strictly 
observed by it, in case England continues to adhere to its practice, 
and the neutral powers persist in looking with indulgence upon all 
these violations of neutrality to the detriment of Germany. Great 
Britain invokes the vital interest of the British Empire which are 
at stake in justification of its violations of the law of nations, and 
the neutral powers appear to be satisfied with theoretical protests, 
thus actually admitting the vital interests of a belligerent as a suffi- 
cient excuse for methods of waging war of whatever description. 

The time has come for Germany also to invoke such vital interests. 
It therefore finds itself under the necessity, to its regret, of taking 
military measures against England in retaliation for the practice fol- 
lowed by England. Just as England declared the whole North Sea 
between Scotland and Norway to be comprised within the seat of 
war, so does Germany now declare the waters surrounding Great 
Britain and Ireland, including the whole English Channel to be com- 
prised within the seat of war, and will prevent by all the military 
means at its disposal all navigation by the enemy in those waters. 
To this end it will endeavor to destroy, after February 18 next, 
any merchant vessels of the enemy which present themselves at the 
seat of war above indicated, although it may not always be possible 
to avert the dangers which may menace persons and merchandise. 
Neutral powers are accordingly forewarned not to continue to entrust 
their crews, passengers, or merchandise to such vessels. Their at- 
tention is furthermore called to the fact that it is of urgency to 
recommend to their own vessels to steer clear of these waters. It 
is true that the German navy has received instructions to abstain 
from all violence against neutral vessels recognizable as such ; but 
in view of the hazards of war, and of the misuse of the neutral flag 
ordered by the British Government, it will not always be possible 
to prevent a neutral vessel from becoming the victim of an attack 
intended to be directed against a vessel of the enemy. It is ex- 
pressly declared that navigation in the waters north of the Shetland 
Islands is outside the danger zone, as well as navigation in the east- 
ern part of the North Sea and in a zone thirty marine miles wide 
along the Dutch coast. 

The German Government announces this measure at a time per- 
mitting enemy and neutral ships to make the necessary arrangements 
to reach the ports situated at the seat of war. They hope that the 
neutral powers will accord consideration to the vital interests of 



28 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Germany equally with those of England, and will on their part 
assist in keeping their subjects and their goods far from the seat of 
war; the more so since they likewise have a great interest in seeing 
the termination at an early day of the war now ravaging. 
{Dip. Co IT. 33.) 

No. 16. Statement of the British Foreign Office, February 
7, 19 1 5, regarding the use of neutral flags and the German 
declaration of a war zone. 

The use of a neutral flag is, with certain limitations, well estab- 
lished in practice as a ruse de guerre. The only effect in the case 
of a merchantman wearing a flag other than her national flag, is to 
compel the enemy to follow the ordinary obligations of naval war- 
fare, and satisfy him as to the nationality of the vessel and the 
character of her cargo by examination, before capturing her and 
taking her into a prize court for adjudication. 

The British Government has always considered the use of the Brit- 
ish colors by foreign vessels legitimate for the purpose of escaping 
capture. Such practice not only involves no breach of international 
law, but it is specifically recognized by the law of this country in the 
Merchant Shipping Act of 1894, 

In instructions to British Consuls in 1914 it is stated: "A ship 
is liable to capture if a British character is improperly assumed 
except for the purpose of escaping capture." 

As we have in practice not objected to foreign merchant vessels 
using the British merchant flag as a ruse for the purpose of evading 
capture at sea at the hands of a belligerent, so we should maintain 
that in the converse case, a British merchant vessel committed no 
breach of international law in assuming neutral colors for a similar 
purpose, if she thought fit. 

By the rules of international law; the customs of war, and the dic- 
tates of humanity, it is obligatory upon a belligerent to ascertain the 
character of the merchant vessel and cargo before capture. Ger- 
many has no right to disregard this obligation. 

To destroy a ship non-combatant crew, and cargo, as Germany 
announced her intention of doing, is nothing less than an act of 
piracy of the high seas. 

{TJic Nezv York Times, February 7, 1915.) 

No. 17. British note, February 10, 1915, replying finally to 
the American note of December 26, 1914 (No. 11), in regard 
to the seizure and detention of American cargoes.* 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

Your Excellency: Your Excellency has already received the 
preliminary answer, which I handed to you on the 7th January, in 
reply to your note of the 28th December on the subject of the seizures 
and detentions of American cargoes destined for neutral European 
ports. 

Since that date I have had further opportunity of examining into 
the trade statistics of the United States as embodied in the customs 
returns, in order to see whether the belligerent action of Great Britain 

* See No. 12. 



^ 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 29 

has been in any way the cause of the trade depression which Your 
Excellency describes as existing in the United States, and also 
whether the seizures of vessels or cargoes which have been made 
by the British navy have inflicted any loss on American owners for 
which our existing machinery provides no means of redress. In 
setting out the results of my investigation I think it well to take the 
opportunity of giving a general review of the methods employed by 
His Majesty's Government to intercept contraband trade with the 
enemy, of their consistency with the admitted right of a belligerent 
to intercept such trade, and also of the extent to which they have 
endeavored to meet the representations and complaints from time 
to time addressed to them on behalf of the United States Govern- 
ment. 

Toward the close of your note of the 28th December Your Ex- 
cellency describes the situation produced by the action of Great 
Britain as a pitiful one to the commercial interests of the United 
States, and said that many of the great industries of the country 
were suffering because their products were denied long-established 
markets in neutral European countries contiguous to the nations 
at war. 

It is unfortunately true that in these days, when trade and finance 
are cosmopolitan, any war — particularly a war of any magnitude — 
must result in a grievous dislocation of commerce, including that 
of the nations which take no part in the war. Your Excellency will 
reahze that in this tremendous struggle, for the outbreak of which 
Great Britain is in no way responsible, it is impossible for the trade 
of any country to escape all injury and loss, but for such His 
Majesty's Government are not to blame. 

I do not understand the paragraph which I have quoted from Your 
Excellency's note as referring to these indirect consequences of the 
state of war, but to the more proximate and direct effect of our 
belligerent action in dealing with neutral ships and cargoes on the 
high seas. Such action has been limited to vessels on their way to 
enemy ports or ports in neutral cowitries adjacent to the theatre of 
war, because it is only through such ports that the enemy introduces 
the supplies which he requires for carrying on the war. 

In my earlier note I set out the number of ships which had sailed 
from the United States for Holland, Denmark, Norway, Sweden, 
and Italy, and I there stated that only 8 of the 773 had been placed 
in the prize court, and that only 45 had been temporarily detained 
to enable particular consignments of cargo to be discharged for the 
purpose of prize-court proceedings. To measure the effect of such 
naval action it is necessary to take into consideration the general 
statistics of the export trade of the United States during the months 
preceding the outbreak of war and those since the outbreak. 

Taking the figures in millions of dollars, the exports of merchandise 
from the United States for the seven months of January to July, 
1914, inclusive, were 1,201, as compared with 1.327 in the correspond- 
ing months of 1913, a drop of 126 millions of dollars. 

For the months of August. Septeml)er, October, and November, 
that is to say, for the four months of the war preceding the delivery 
of Your Excellencv's note, the figures of the exports of merchandise 
were (again in millfons of dollars) 667 as compared with qzT, in the 
corresponding months of 1913, a drop of 256 millions of dollars. 

If, however, the single article of cotton be eliminated from the 



30 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



1 



comparison, the figures show a very different result. Thus the ex- 
ports of all articles of merchandise other than cotton from the United 
States during the first seven months of 1914 v^ere 966 millions of 
dollars as against 1,127 milHons in 1913, a drop of 161 mihions of 
dollars, or 14V2 per cent. On the other hand, the exports of the same 
articles during the months August to November amounted to 608 
millions of dollars as compared with 630 millions in 1913, a drop of 
only 22 millions, or less than 4 per cent. 

It is therefore clear that, if cotton be excluded, the effect of the 
war has been not to increase but practically to arrest the decline of 
American exports which was in progress earlier in the year. In 
fact, any decrease in American exports which is attributable to the 
war is essentially due to cotton. Cotton is an article which cannot 
possibly have been affected by the exercise of our belligerent rights, 
for, as Your Excellency is aware, it has not been declared by His 
Majesty's Government to be contraband of war, and the rules under 
which we are at present conducting our belligerent operations give 
us no power in the absence of a blockade to seize or interfere with 
it when on its way to a belligerent country in neutral ships. Con- 
sequently no cotton has been touched. 

Into the causes of the decrease in the exports of cotton I do not 
feel that there is any need for me to enter, because, whatever may 
have been the cause, it is not to be found in the exercise of the 
belligerent rights of visit, search, and capture, or in our general 
right when at war to intercept the contraband trade of our enemy. 
Imports of cotton to the United Kingdom fell as heavily as those 
to other countries. No place felt the outbreak of war more acutely 
than the cotton districts of Lancashire, where for a time an immense 
number of spindles were idle. Though this condition has now to a 
large extent passed away, the consumption of the raw material in 
Great Britain was temporarily much diminished. The same is no 
doubt true of France. 

The general result is to show convincingly that the naval opera- 
tions of Great Britain are not the cause of any diminution in the 
volume of American exports, and that if the commerce of the United 
States is in the unfavourable condition which Your Excellency de- 
scribes, the cause ought in fairness to be sought elsewhere than in 
the activities of His Majesty's naval forces. 

I may add that the circular issued by the Department of Commerce 
at Washington on the 23rd January admits a marked improvement 
in the foreign trade of the United States, which we have noted with 
great satisfaction. The first paragraph of the circular is worth quot- 
ing verbatim: 

" A marked improvement in our foreign trade is indicated by the 
latest reports issued by the Department of Commerce through its 
Bureau of Foreign and Domestic Commerce, sales of foodstuffs and 
certain lines of manufactures having been unusually large in Novem- 
ber, the latest period for which detailed information is at hand. In 
that month exports aggregated 206,000,000 dollars, or double the total 
for August last, when, by reason of the outbreak of war, our foreign 
trade fell to the lowest level reached in many years. In December 
there was further improvement, the month's exports being valued at 
246.000,000 dollars, compared with 233,000,000 in December, 1913, and 
within 4,000,000 of the high record established in December, 1912." 

A better view of the situation is obtained by looking at the figures 



THE PROTECTION OF NEUTRAL RIGHTS .VT SEA 31 

month by month. The exports of merchandise for the last five months 
have been (in milHons of dollars) : 

August 1 10 

September 156 

October ic)4 

November 205 

December 246 

The outbreak of v^ar produced in the United States, as it did in all 
neutral countries, an acute but temporary disturbance of trade. Since 
that time there seems to have been a steady recovery, for to-day the 
exports from the United States stand at a higher figure than on the 
same date last year. 

Before passing away from the statistics of trade, and in order to 
demonstrate still more clearly if necessary that the naval operations 
of Great Britain and her allies have had no detrimental effect on the 
volume of trade between the United States and neutral countries, it is 
worth while to analyse the figures of the exports to Europe since the 
outbreak of hostilities. For this purpose the European countries 
ought to be grouped under three heads: Great Britain and those 
fighting with her, neutral countries, and enemy countries. It is, how- 
ever, impossible for me to group the countries in this way satisfac- 
torily, as the figures relating to the export trade of the United States 
with each country have not yet been published. In the preliminary 
statement of the export trade of the United States with foreign 
countries only principal countries are shown, and various countries 
which are tabulated separately in the more detailed monthly sum- 
mary of commerce and finance are omitted. Those omitted include 
not only the Scandinavian countries, the exports to which are of 
peculiar importance in dealing with this question, but also Austria. 

So far as it is possible to distribute the figures under the headings 
which I have indicated above (all the figures being given in thousands 
of dollars) the results are as follows: 

Total exports to Europe from the ist August to the 30th November, 
413,995, as against 597,342 in 1913. Of these. Great Britain and her 
allies took 288,312, as against 316,805 in 1913. Germany and Belgium 
took 1,881 as against 177,136 in 1913; whereas neutral countries 
(among which Austria-Hungary is unavoidably included) took 123,- 
802, as against 103,401 in 1913. 

The general complaint in Your Excellency's note was that the 
action of Great Britain was affecting adversely the trade of the 
United States with neutral countries. The naval operations of Great 
Britain certainly do not interfere with commerce from the United 
States on its way to the United Kingdom and the allied countries, 
and yet the exports to Great Britain and her allies during those four 
months diminished to the extent of over 28,000,000 dollars, whereas 
those to neutral countries and Austria increased by over 20,000,000 
dollars. 

The inference may fairly be drawn from these figures, all of which 
are taken from the official returns published by the United States 
Government, that not only has the trade of the United States with 
the neutral countries in Europe been maintained as compared with 
previous years, but also that a substantial part of this trade was. in 
fact, trade intended for the enemy countries going through neutral 
ports by routes to which it was previously unaccustomed. 



32 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

One of the many Inconveniences to which this great war is ex- 
posing the commerce of all neutral countries is undoubtedly the 
serious shortage in ship]^ing available for ocean transport, and the 
consequential result of excessive freights. 

It cannot fairly be said that this shortage is caused by Great 
Britain's interference with neutral ships. At the present time there 
are only seven neutral vessels awaiting adjudication in the prize 
courts in this country, and three in those in the British dominions. 
As Your Excellency is aware, I have already instructed our ambassa- 
dor at Washinofton to remind the parties who are interested in these 
vessels that it is open to them to apply to the court for the release 
of these ships on bail, and if an application of this sort is made by 
them it is not likely to be opposed by the Crown. There is therefore 
no reason why such an application should not be favourably enter- 
tained by the court, and, if acceded to, all these vessels will again be 
available for the carriage of commerce. Only one neutral vessel is 
now detained in this country in addition to those awaiting adjudica- 
tion in the prize court. 

Every effort has been made in cases in which it has been found 
necessary to institute proceedings against portions of the cargo to 
secure the speedy discharge of the cargo and the release of the ship, 
so as to enable it to resume work. Great Britain is suffering from 
the shortage of shipping and the rise in freights as acutely as, if 
not more than, other nations and His Majesty's Government have 
taken every step that they could consistently with their belligerent 
interests to increase the tonnage available for the transport of sea- 
borne commerce. The enemy ships which have been condemned in 
the prize courts in this country are being sold as rapidly as possible 
in order that they may become available for use; and those which 
have been condemned in the prize courts oversea are being brought 
to this country in order that they may be disposed of here, and again 
placed in active employment. 

The difficulties have been accentuated by the vmforseen conse- 
quences of the convention which was signed at The Hague in 1907 
relative to the status of enemy merchant vessels at the outbreak of 
war. This convention was a well-intentioned effort to diminish the 
losses which war must impose upon innocent persons, and provided 
that enemy merchant ships seized by a belligerent in whose ports 
they lay at the outbreak of war should not be condemned, but should 
merely be detained for the period of the war, unless they were lib- 
erated in the days of grace. We could come to no arrangement with 
the German Government for the reciprocal grant of days of grace, 
and the German merchant vessels lying in British ports when the war 
broke out have therefore been sentenced to detention in lieu of con- 
demnation. The normal result would have been still further to reduce 
the volume of shipping available for the commerce of the world. To^ 
ease the situation, however, His Majesty's Government are resorting 
to the power of requisitioning which is given by the convention, so 
that these ships may again be placed in active service. 

Your Excellency will see, therefore, that His Majesty's Government 
are doing all in their power to increase the volume of shipping avail- 
able. ^ I hope it^ will be realized that the detention of neutral ships 
by His Majesty's Government with a view to the capture of contra-, 
band trade on its way to the enemy has not contributed nearly so' 
much to the shortage of shipping as has the destruction of neutral 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 33 

vessels by submarine mines indiscriminately laid by the enemy on 
the high seas, many miles from the coast, in the track of merchant 
vessels. Up till now 25 neutral vessels have been reported as de- 
stroyed by mines on the high seas ; quite apart from all questions of 
the breach of treaties and the destruction of life, there is far more 
reason for protesT: on the score of belligerent interference with inno- 
cent neutral trade through the mines scattered by the enemy than 
through the British exercise of the right of seizing contraband. 

I trust that what I have said above will be sufficient to convince 
Your Excellency's Government that the complaints that the naval 
policy of Great Britain has interfered with the shipments of American 
products to long-established markets in neutral European countries is 
founded on a misconception. 

In justice to the peoples of both countries, I feel that this oppor- 
tunity should be taken to explain the lines on which His Majesty's 
Government have been acting hitherto, so as to show that the line 
they have followed is in no way inconsistent with the general funda- 
mental principle of international law and to indicate the care with 
w^hich they have endeavored to meet the representations which have 
been made by the United States Government from time to time dur- 
ing the war on these questions. 

No one in these days will dispute the general proposition that a 
belligerent is entitled to capture contraband goods on their way to 
the enemy; that right has now become consecrated by long usage 
and general acquiescence. Though the right is ancient, the means 
of exercising it alter and develop with the changes in the methods 
and machinery of commerce. A century ago the difficulties of land 
transport rendered it impracticable for the belligerent to obtain sup- 
pHes of sea-borne goods through a neighboring neutral country. 
Consequently the belligerent actions of his opponents neither required 
nor justified any interference with shipments on their way to a neutral 
port. This principle was recognized and acted on in the decisions in 
which Lord Stowell laid down the lines on which captures of such 
goods should be dealt with. 

The advent of steam power has rendered it as easy for a belligerent 
to supply himself through the ports of a neutral contiguous country 
as through his own and has therefore rendered it impossible for his 
opponent to refrain from interfering with commerce intended for 
the enemy merely because it is on its way to a neutral port. 

No better instance of the necessity of countering new devices for 
despatching contraband goods to an enemy by new methods of apply- 
ing the fundamental principle of the right to capture such contraband 
can be given than the steps which the Government of the United 
States found it necessary to take during the American Civil War. 
It was at that time that the doctrine of continuous voyage was first 
applied to the capture of contraband, that is to say, it was then for 
the first time that a belligerent found himself obliged to capture con- 
traband goods on their way to the enemy, even though at the time 
of capture they were en route for a neutral port from which they were 
intended subsequently to continue their journey. The policy then fol- 
lowed by the LInited States Government was not inconsistent with 
the general principles alreadv sanctioned by international law, and 
met with no protest* from His Majesty's Government, though it was 
upon British cargoes and upon British shins that the losses and the 
inconvenience due to this new development of the application of the 



34 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

old rule of international law principally fell. The criticisms which 
have been directed against the steps then taken by the United States 
came, and come, from those who saw in the methods employed in 
Napoleonic times for the prevention of contraband a limitation upon 
the right itself, and failed to see that in Napoleonic times goods on 
their way to a neutral port were immune from capture, not because 
the immediate destination conferred a privilege, but because capture 
under such circumstances was unnecessary. 

The facilities which the introduction of steamers and railways have 
given to a belligerent to introduce contraband goods through neutral 
ports have imposed upon his opponent the additional difficulty, when 
endeavouring to intercept such trade, of distinguishing between the 
goods which are really destined for the commerce of that neutral 
country and the goods which are on their way to the enemy. It is 
one of the many difficulties with which the United States Government 
found themselves confronted in the days of the Civil War, and I 
cannot do better than quote the words which Mr. Seward, who was 
then Secretary of State, used in the course of the diplomatic discus- 
sion arising out of the capture of some goods on their way to 
Matamoros which were believed to be for the insurgents : 

" Neutrals engaged in honest trade with Matamoros must expect 
to experience inconvenience from the existing blockade of Browns- 
ville and the adjacent coast of Texas. While this Government un- 
feignedly regrets this inconvenience, it cannot relinquish any of its 
belligerent rights to favour contraband trade with insurgent territory. 
By insisting upon those rights, however, it is sure that that necessity 
for their exercise at all, which must be deplored by every friendly 
commercial Power, will the more speedily be terminated." 

The opportunities now enjoyed by a belligerent for obtaining sup- 
plies through neutral ports are far greater than they were fifty years 
ago, and the geographical conditions of the present struggle lend 
additional assistance to the enemy in carrying out such importation. 
We are faced with the problem of intercepting such supplies when 
arranged with all the advantages that flow from elaborate organisation 
and unstinted expenditure. If our belligerent rights are to be main- 
tained, it is of the first importance for us to distinguish between 
what is really bona fide trade intended for the neutral country con- 
cerned and the trade intended for the enemy country. Every effort 
is made by organizers of this trade to conceal the true destination, 
and if the innocent neutral trade is to be distinguished from the 
enemy trade it is essential that His Majesty's Government should be 
entitled to make, and should make, careful enquiry with regard to 
the destination of particular shipments of goods even at the risk of 
some slight delay to the parties interested. If such enquiries were not 
made, either the exercise of our belligerent rights would have to be 
abandoned, tending to the prolongation of this war and the increase 
of the loss and suffering which it is entailing upon the whole world, 
or else it would be necessary to indulge in indiscriminate captures of 
neutral goods and their detention throughout all the period of the 
resulting prize court proceedings. Under the system now adopted 
it has been found possible to release without delay, and consequently 
without appreciable loss to the parties interested, all the goods of 
which the destination is shown as the result of the enquiries to be 
innocent. 

It may well be that the system of making such enquiries is to a 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 35 

certain extent a new introduction, in that it has been practised to a 
far greater extent than in previous wars ; but if it is correctly de- 
scribed as a new departure, it is a departure which is wholly to the 
advantage of neutrals, and which has been made for the purpose of 
relieving them so far as possible from loss and inconvenience. 

There was a passage in a note which the State Department ad- 
dressed to the British ambassador at Washington on the 7th Novem- 
ber to which I think it may be well to refer: 

" In the opinion of this Government, the belligerent right of visit 
and search requires that the search should be made on the high seas 
at the time of the visit, and that the conclusion of the search should 
rest upon the evidence found on the ship under investigation, and not 
upon circumstances ascertained from external sources." 

The principle here enunciated appears to me to be inconsistent with 
the practice in these matters of the United States Government, as 
well as of the British Government. It certainly was not the rule 
upon which the United States Government acted either during the 
Civil War or during the Spanish-American War, nor has it ever been 
the practice of the British Government, nor so far as I am aware, 
of any other Government which has had to carry on a great naval 
war ; as a principle I think it is impossible in modern times. The 
necessity for giving the belligerent captor full liberty to establish 
by all the evidence at his disposal the enemy destination with which 
the goods were shipped was recognised in all the leading decisions 
in the prize courts of the United States during the Civil War. 

No clearer instance could be given than the reporter's statement 
of the case of the Bermuda (3 Wallace, 514) : 

" The final destination of the cargo in this particular voyage was 
left so skilfully open . . . that it was not quite easy to prove, with 
that certainty which American courts require, the intention, which it 
seemed plain must have really existed. Thus to prove it required 
that truth should be collated from a variety of sources, darkened and 
disguised ; from others opened as the cause advanced, and by accident 
only; from coincidences undesigned, and facts that were circumstan- 
tial. Collocations and comparisons, in short, brought largely their 
collective force in aid of evidence that was more direct." 

It is not impossible that the course of the present struggle will 
show the necessity for belligerent action to be taken in various ways 
which may at first sight be regarded as a departure from old practice. 
In my note of the 7th January, I dealt at some length with the ques- 
tion of the necessity of taking vessels into port for the purposes of 
carrying out an effective search, where search was necessary; to 
that subject I feel that I need not again recur. 

The growth in the size of steamships necessitates in many cases 
that the vessel should go into calm water, in order that even the right 
of visit, as apart from the right of search, should be exercised. In 
modern times a steamer is capable of pursuing her voyage irrespective 
of the conditions of the weather. Many of the neutral merchantmen 
which our naval officers are called upon to visit at sea are encountered 
by our cruisers in places and under conditions wdiich render the 
launching of a boat impossible. The conditions during winter in the 
North Atlantic frequently render it impracticable for days together 
for a naval officer to board a vessel on her w^ay to Scandinavian coun- 
tries. If a belligerent is to be denied the right of taking a neutral 
merchantman, niet with under such conditions, into calm water in 



36 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

order that the visiting officer may go aboard, the right of visit and 
of search would become a nullity. 

The present conflict is not the first in which this necessity has 
arisen. As long ago as the Civil War the United States found it 
necessary to take vessels to United States ports in order to determine 
whether the circumstances justified their detention. 

The same need arose during the Russo-Japanese War and also 
during the second Balkan War, when it sometimes happened that 
British vessels were made to deviate from their course and follow 
the cruisers to some spot where the right of visit and of search 
could be more conveniently carried out. In both cases this exercise 
of belligerent rights, although questioned at first by His Majesty's 
Government, was ultimately acquiesced in. 

No Power in these days can afford during a great war to forego 
the exercise of the right of visit and search. Vessels which are 
apparently harmless merchantmen can be used for carrying and lay- 
ing mines and even fitted to discharge torpedoes. Supplies for sub- 
marines can without difficulty be concealed under other cargo. The 
only protection against these risks is to visit and search thoroughly 
every vessel appearing in the zone of operations, and if the circum- 
stances are such as to render it impossible to carry it out at the spot 
where the vessel was met with the only practicable course is to take 
the ship to some more convenient locality for the purpose. To do so 
is not to be looked upon as a new belligerent right, but as an adapta- 
tion of the existing right to the modern conditions of commerce. 
Like all belligerent rights, it must be exercised with due regard for 
neutral interests, and it would be unreasonable to expect a neutral 
vessel to make long deviations from her course for this purpose. It 
is for this reason that we have done all we can to encourage neutral 
merchantmen on their way to ports contiguous to the enemy country 
to visit some British port lying on their line of route in order that 
the necessary examination of the ship's papers, and, if required, of 
the cargo, can be made under conditions of convenience to the ship 
herself. The alternative would be to keep a vessel which the naval 
officers desired to board waiting, it might be for days together, until 
the weather conditions enabled the visit to be carried out at sea. 

No war has yet been waged in which neutral individuals have not 
occasionally suffered from unjustified belligerent action; no neutral 
nation has experienced this fact more frequently in the past than 
Great Britain. The only method by which it is possible to harmonise 
belligerent action with the rights of neutrals is for the belligerent 
nation to provide some adequate machinery by which in any such 
case the facts can be investigated and appropriate redress can be 
obtained by the neutral individual. In this country such machinery 
is provided by the powers which are given to the prize court to deal 
not only with captures, but also with claims for compensation. 
Order V, rule 2, of the British prize court rules, provides that where 
a ship has been captured as prize, but has been subsequently released 
by the captors, or has by loss, destruction, or otherwise ceased to be 
detained by them, without proceedings for condemnation having been 
taken, any person interested in the ship (which by Order I, rule 2. 
includes goods) wishing to make a claim for costs and damages in 
respect thereof, shall issue a writ as provided by Order II. A writ 
so issued will initiate a proceeding, which will follow its ordinary 
course in the prize court. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 37 

This rule gives the prize court ample jurisdiction to deal with any 
claim for compensation by a neutral arising from the interference 
with a ship or goods by our naval forces. The best evidence that 
can be -given of the discrimination and the moderation with which 
our naval officers have carried out their duties is to be found in 
the fact that up to this time no proceedings for the recovery of 
compensation have been initiated under the rule which i have 
quoted. 

It is the common experience of every war that neutrals whose 
attempts to engage in suspicious trading are frustrated by a belligerent 
are wont to have recourse to their Government to urge that diplomatic 
remonstrances should be made on their behalf, and that redress 
should be obtained for them in this way. When an effective mode 
of redress is open to them in the courts of a civilized country by 
which they can obtain adequate satisfaction for any invasion of their 
rights which is contrary to the law of nations, the only course which 
is consistent with sound principle is that they should be referred 
to that mode of redress, and that no diplomatic action should be 
taken until their legal remedies have been exhausted, and they are 
in a position to show prima facie denial of justice. 

The course adopted by His Majesty's Government during the Amer- 
ican Civil War was in strict accordance with this principle. In spite 
of remonstrances from many quarters, they placed full reliance on the 
American prize courts to grant redress to the parties interested in 
cases of alleged wrongful capture by American ships of war, and 
put forward no claims until the opportunities for redress in those 
courts had been exhausted. The same course was adopted in the 
Spanish-American War, when all British subjects who complained 
of captures or detentions of their ships were referred to the prize 
courts for relief. 

Before leaving the subject may I remind Your Excellency of the 
fact that at your request you are now supplied immediately by this 
department w^ith particulars of every ship under American colors 
which is detained, and of every shipment of cargo in which an Amer- 
ican citizen appears to be the party interested. Not only is the fact 
of detention notified to Your Excellency, but so far as is practicable 
the grounds upon which the vessel or cargo has been detained are 
also communicated to you; a concession which enables any United 
States citizen to take steps at once to protect his interests. 

His Majesty's Government have also done all that lies in their 
power to insure rapid action when ships are reported in British ports. 
They realize that the ship and cargo owners may reasonably expect 
an immediate decision to be taken as to whether the ship may be 
allowed to proceed, and whether her cargo or any part of it must 
be discharged and put into the prize court. Realizing that the ordi- 
nary methods of interdepartmental correspondence might cause delays 
which could be obviated by another method of procedure, they estab- 
lished several months ago a special committee, on which all the depart- 
ments concerned are represented. This committee sits daily, and 
is provided with a special clerical staff. As soon as a ship reaches 
port full particulars are telegraphed to London, and the case is dealt 
with at the next meeting of the committee, immediate steps being 
taken to carry out the action decided upon. By the adoption of this 
procedure it has beeiT found possible to reduce to a minimum the 
delays to \vhich neutral shipping is exposed by the exercise of 



38 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

belligerent rights, and by the necessity, imposed by modern conditions, 
of examining with care the destination of contraband articles. 

Particular attention is directed in Your Excellency's note to the 
policy we are pursuing with regard to conditional contraband, espe- 
cially foodstuffs, and it is there stated that a number of American 
cargoes have been seized without, so far as Your Excellency's Gov- 
ernment are informed, our being in possession of facts which war- 
ranted a reasonable belief that the shipments had in reality a belliger- 
ent destination, and in spite of the presumption of innocent use due 
to their being destined to neutral territory. The note does not 
specify any particular seizures as those which formed the basis of 
this complaint, and I am therefore not aware whether the passage 
refers to cargoes which were detained before or since the order in 
council of the 29th October w-as issued. 

Your Excellency will no doubt remember that soon after the out- 
break of war an order of His Majesty in council was issued under 
which no distinction was drawn in the application of the doctrine of 
continuous voyage between absolute contraband and conditional con- 
traband, and which also imposed upon the neutral owner of contra- 
band somewhat drastic conditions as to the burden of proof of the 
guilt or innocence of the shipment. 

The principle that the burden of proof should always be imposed 
upon the captor has usually been admitted as a theory. In practice, 
however, it has almost always been otherwise, and any student of 
the prize courts decisions of the past or even of modern wars will 
find that goods seldom escape condemnation unless their owner was 
in a position to prove that their destination was innocent. An attempt 
was made some few years ago, in the unratified Declaration of Lon- 
don, to formulate some definite rules upon this subject, but time alone 
can show whether the rules there laid down will stand the test of 
modern warfare. 

The rules which His Majesty's Government published in the order 
in council of the 20th August, 1914, were criticised by the United 
States Government as contrary to the generally recognised princi- 
ples of international law, and as inflicting unnecessary hardship upon 
neutral commerce, and Your Excellency will remember the prolonged 
discussion which took place between us through the month of October 
with a view to finding some new formulae which should enable us 
to restrict supplies to the enemy forces, and to prevent the supply 
to the enemy of materials essential for the making of munitions of 
war, while inflicting the minimum of injury and interference with 
neutral commerce. It was with this object that the order in council 
of the 29th October was issued, under the provisions of which a far 
greater measure of immunity is conferred upon neutral commerce. 
In that order the principle of noninterference with conditional con- 
traband on its way to a neutral port is in large measure admitted; 
only in three cases is the right to seize maintained, and in all those 
cases the opportunity is given to the claimant of the goods to establish 
their innocence. 

^ Two of those cases are where the ship's papers afford no informa- 
tion as to the person for whom the goods are intended. It is only 
reasonable that a belligerent should be entitled to regard as suspicious 
cases where the shippers of the goods do not choose to disclose the 
name of the individual who is to receive them. The third case is 
■'•hat of goods addressed to a person in the enemy territory. In the 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 39 

peculiar circumstances of the present struggle, where the forces of 
the enemy comprise so large a proportion of the population, and 
where there is so little evidence of shipments on 'private as distin- 
guished from Government account, it is most reasonable that the 
burden of proof should rest upon the claimant. 

The most difficult questions in connection with conditional contra- 
band arise with reference to the shipment of foodstuffs. No country 
has maintained more stoutly than Great Britain in modern times the 
principle that a belligerent should abstain from interference with the 
foodstuffs intended for the civil population. The circumstances of 
the present struggle are causing His Majesty's Government some 
anxiety as to whether the existing rules with regard to conditional 
contraband, framed as they were with the object of protecting so 
far as possible the supplies which were intended for the civil popu- 
lation, are effective for the purpose, or suitable to the conditions 
present. The principle which I have indicated above is one which His 
Majesty's Government have constantly had to uphold against the 
opposition of continental powers. In the absence of some certainty 
that the rule would be respected by both parties to this conflict, we 
feel great doubt whether it should be regarded as an established prin- 
ciple of international law. 

Your Excellency will, no doubt, remember that in 1885, ^^ the 
time when His Majesty's Government were discussing wdth the 
French Government this question of the right to declare foodstuffs 
not intended for the military forces to be contraband, and when public 
attention had been drawn to the matter, the Kiel Chamber of Com- 
merce applied to the German Government for a statement of the 
latter's views on the subject. Prince Bismarck's answer was as 
follows : 

" In answer to their representation of the ist instant, I reply to the 
Chamber of Commerce that any disadvantage our commercial and 
carrying interests may suffer by the treatment of rice as contraband 
of war does not justify our opposing a measure which it has been 
thought fit to take in carrying on a foreign war. Every war is a 
calamity, which entails evil consequences not only on the combatants, 
but also on neutrals. These evils may easily be increased by the 
interference of a neutral power with the way in which a third carries 
on the war, to the disadvantage of the subjects of the interfering 
power, and by this means German commerce might be weighed with 
far heavier losses than a transitory prohibition of the rice trade in 
Chinese waters. The measure in question has for its object the 
shortening of the war by increasing the difjiculties of the enemy, and 
is a justifiable step in zvar if impartially enforced against all neutral 
ships/' 

His Majesty's Government are disposed to think that the same view 
is still maintained by the German Government. 

Another circumstance which is now coming to light is that an 
elaborate machinery has been organized by the enemy for the supply 
of foodstuffs for the use of the German army from overseas. Under 
these circumstances it would be absurd to give any definite pledge 
that in cases where the supplies can be proved to be for the use 
of the enemy forces they should be given complete immunity by 
the simple expedient of despatching them to an agent in a neutral 
port. • 

The reason for drawins: a distinction between foodstuffs intended 



40 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

for the civil population and those for the armed forces or enemy 
Government disappears when the distinction between the civil popula- 
tion and the armed forces itself disappears. 

In any country in which there exists such a tremendous organisa- 
tion for war as now obtains in Germany there is no clear division 
between those whom the Government is responsible for feeding and 
those whom it is not. Experience shows that the power to requisition 
will be used to the fullest extent in order to make sure that the wants 
of the military are supplied, and however much goods may be im- 
ported for civil use it is by the military that they will be consumed 
if military exigencies require it, especially now that the German Gov- 
ernment have taken control of all the foodstuffs in the country. 

I do not wish to overburden this note with statistics, but in proof 
of my statement as to the unprecedented extent to which supplies are 
reaching neutral ports I should like to instance the figures of the 
exports of certain meat products to Denmark during the months of 
September and Octoljer. Denmark is a country which in normal 
times imports a certain quantity of such products, but exports still 
more. In 1913, during the above two months, the United States 
exports of lard to Denmark were nil, as compared with 22,652,598 
pounds in the same two months of 1914. The corresponding figures 
with regard to bacon were: 1913, nil; 1914, 1,022,195 pounds; canned 
beef, 1913, nil; 1914, 151,200 pounds; pickled and cured beef, 1913,, 
42,901 pounds; 1914, 156,143 pounds; pickled pork, 1913, nil; 1914, 
812,872 pounds. 

In the same two months the United States exported to Denmark 
280,176 gallons of mineral lubricating oil in 1914 as compared with 
179,252 in 1913; to Norway, 335,468 gallons in 1914, as against 
151,179 gallons in 1913; to Sweden, 896,193 gallons in 1914, as against 
385,476 gallons in 1913. 

I have already mentioned the framing of the order in council of 
the 20th October, and the transmission to Your Excellency of par- 
ticulars of ships and cargoes seized as instances of the efforts which 
w^e have made throughout the course of this war to meet all reason- 
able complaints made on behalf of American citizens, and in my 
note of the 7th January I alluded to the decision of our prize court in 
the case of the Miramichi, as evidencing the liberal principles adopted 
toward neutral commerce. 

I should also like to refer to the steps which we took at the begin- 
ning of the war to insure the speedy release of cargo claimed by 
neutrals on board enemy ships which were captured or detained at 
the outbreak of war. Under our prize court rules release of such 
goods can be obtained without the necessity of entering a claim in 
the prize court if the documents of title are produced to the officer 
representing His Majesty's Government, and the title to the goods 
is established to his satisfaction. It was shortly found, however, 
that this procedure did not provide for the case where the available 
evidence was so scanty that the officer representing the Crown was 
not justified in consenting to a release. In order, therefore, to 
ameliorate the situation we established a special committee, with full 
powers to authorise the release of goods without insisting on full 
evidence of title being produced. This committee dealt with the 
utmost expedition with a large number of claims. In the great ma- 
jority of cases the goods claimed w^ere released at once. In addition 
to the cases dealt with by this committee a yery large amount of cargo 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 41 

was released at once by the procurator general on production of 
documents. Claimants therefore obtained their goods without the 
necessity of applying to the prize court and of incurring the expense 
involved in retaining lawyers, and without the risk, which was in 
some cases a considerable one, of the goods being eventually held to 
be enemy property and condemned. We have reason to know that 
our action in this matter was highly appreciated by many American 
citizens. 

Another instance of the efforts which His Majesty's Government 
have made to deal as leniently as possible with neutral interests may 
be found in the policy which we have followed with regard to the 
transfer to a neutral flag of enemy ships belonging to companies 
which were incorporated in the enemy country, but all of whose 
shareholders were neutral. The rules applied by the British and by 
the American prize courts have always treated the flag as conclusive 
in favour of the captors in spite of neutral proprietary interests (see 
the case of the Pedro, 175 U. S., 354). In several cases, however, 
we have consented to waive our belligerent rights to treat as enemy 
vessels ships belonging to companies incorporated in Germany which 
were subsidiary to and owned by American corporations. The only 
condition which we have imposed is that these vessels should take 
no further part in trade with the enemy country. 

I have given these indications of the policy which we have followed, 
because I cannot help feeling that if the facts were more fully known 
as to the efforts which we have made to avoid inflicting any avoid- 
able injury on neutral interests, many of the complaints which have 
been received by the administration in Washington, and which led 
to the protest which Your Excellency handed to me on the 29th 
December would never have been made. My hope is that when the 
facts which I have set out above are realised, and when it is seen 
that our naval operations have not diminished American trade with 
neutral countries, and that the lines on which we have acted are 
consistent with the fundamental principles of international law, it 
will be apparent to the Government and people of the United States 
that His Majesty's Government have hitherto endeavoured to exercise 
their belligerent rights with every possible consideration for the inter- 
ests of neutrals. 

It will still be our endeavour to avoid injury and loss to neutrals, 
but the announcement by the German Government of their intention 
to sink merchant vessels and their cargoes without verification of 
their nationality or character, and without making any provision for 
the safety of non-combatant crews or giving them a chance of sav- 
ing their lives, has made it necessary for His Majesty's Government 
to consider what measures they should adopt to protect their inter- 
ests. It is impossible for one belligerent to depart from rules and 
precedents and for the other to remain bound by them. 

I have the honour, etc., etc., 

(Signed) E. Grey. 

(Dip. Corr. 44-52.) 

No. 18. American note, February lo," 1915, regarding the 
German declaration of a war zone. 

The Secretary of^Statc to the American Ambassador at Berlin. 
Please address a note immediately to the Imperial German Gov- 
ernment to the following effect: 



42 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

The Government of the United States, having had its attention 
directed to the proclamation of the German Admiralty issued on the 
fourth of February, that the waters surrounding Great Britain and 
Ireland, including the whole of the English Channel, are to be con- 
sidered as comprised within the seat of war; that all enemy merchant 
vessels found in those waters after the eighteenth instant will be 
destroyed, although it may not always be possible to save crews and 
passengers; and that neutral vessels expose themselves to danger 
within this zone of war because, in view of the misuse of neutral flags 
said to have been ordered by the British Government on the thirty- 
first of January and of the contingencies of maritime warfare, it may 
not be possible always to exempt neutral vessels from attacks in- 
tended to strike enemy ships, feels it to be its duty to call the atten- 
tion of the Imperial German Government, with sincere respect and 
the most friendly sentiments but very candidly and earnestly, to the 
very serious possibilities of the course of action apparently contem- 
plated under that proclamation. 

The Government of the United States views those possibilities with 
such grave concern that it feels it to be its privilege, and indeed its 
duty in the circumstances, to request the Imperial German Govern- 
ment to consider before action is taken the critical situation in respect 
of the relations between this country and Germany which might arise 
were the German naval forces, in carrying out the policy foreshad- 
owed in the Admiralty's proclamation, to destroy any merchant vessel 
of the United States or cause the death of American citizens. 

It is of course not necessary to remind the German Government 
that the sole right of a belligerent in dealing with neutral vessels on 
the high seas is limited to visit and search, unless a blockade is pro- 
claimed and effectively maintained, which this Government does not 
understand to be proposed in this case. To declare or exercise a 
right to attack and destroy any vessel entering a prescribed area of 
the high seas without first certainly determining its belligerent na- 
tionality and the contraband character of its cargo would be an act 
so unprecedented in naval warfare that this Government is reluctant 
to believe that the Imperial Government of Germany in this case 
contemplates it as possible. The suspicion that enemy ships are using 
neutral flags improperly can create no just presumption that all ships 
traversing a prescribed area are subject to the same suspicion. It 
is to determine exactly such questions that this Government under- 
stands the right of visit and search to have been recognized. 

This Government has carefully noted the explanatory statement 
issued by the Imperial German Government at the same time with 
the proclamation of the German Admiralty, and takes this occasion 
to remind the Imperial German Government very respectfully that 
the Government of the United States is open to none of the criticisms 
for unneutral action to which the German Government believe the 
governments of certain of other neutral nations have laid themselves 
open; that the Government of the United States has not consented 
to or acquiesced in any measures which may have been taken by 
the other belligerent nations in the present war which operate to 
restrain neutral trade,- but has, on the contrary, taken in all such 
matters a position which warrants it in holding those governments 
responsible in the proper way for any untoward effects upon Amer- 
ican shipping which the accepted principles of international law do 
not justify; and that it, therefore, regards itself as free in the present 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 43 

instance to take with a clear conscience and upon accepted principles 
the position indicated in this note. 

If the commanders of German vessels of war should act upon the 
presumption that the flag of the United States was not being used in 
good faith and should destroy on the high seas an American vessel 
or the lives of American citizens, it would be difficult for the Govern- 
ment of the United States to view the act in any other light than 
as an indefensible violation of neutral rights which it would be very 
hard indeed to reconcile with the friendly relations now so happily 
subsisting between the two Governments. 

If such a deplorable situation should arise, the Imperial German 
Government can readily appreciate that the Government of the United 
States would be constrained to hold the Imperial German Government 
to a strict accountability for such acts of their naval authorities and 
to take any steps it might be necessary to take to safeguard American 
lives and property and to secure to American citizens the full enjoy- 
ment of their acknowledged rights on the high seas. 

The Government of the United States, in view of these considera- 
tions, which it urges with the greatest respect and with the sincere 
purpose of making sure that no misunderstanding may arise and no 
circumstance occur that might even cloud the intercourse of the two 
Governments, expresses the confident hope and expectation that the 
Imperial German Government can and will give assurance that 
American citizens and their vessels will not be molested by the naval 
forces of Germany otherwise than by visit and search, though their 
vessels may be traversing the sea area delimited in the proclamation 
of the German Admiralty. 

It is added for the information of the Imperial Government that 
representations have been made to His Britannic Majesty's Govern- 
ment in respect to the unwarranted use of the American flag for the 
protection of British ships. 

Bryan. 

(Dip. Corr. 54-55.) 

No. 19. American memorandum, February 10, 19 15, con- 
cerning the use of the American flag by British vessels. 

The Secretary of State to the American Ambassador at London. 

The department has been advised of the Declaration of the German 
Admiralty on February fourth, indicating that the British Govern- 
ment had on January thirty-first explicitly authorized the use of 
neutral flags on British merchant vessels presumably for the purpose 
of avoiding recognition by German naval forces. The department's 
attention has also been directed to reports in the press that the cap- 
tain of the Liisitania, acting upon orders or information received 
from the British authorities, raised the American flag as his vessel 
approached the British coasts, in order to escape anticipated attacks 
by German submarines. To-day's press reports also contain an al- 
leged official statement of the Foreign Office defending the use of 
the flag of a neutral country by a belligerent vessel in order to escape 
capture or attack by an enemy. 

Assuming that the foregoing reports are true, the Government 
of the United States, reserving for future consideration the legality 
and propriety of the deceptive use of the flag of a neutral power in 
any case for the purpose of avoiding capture, desires very respect- 



44 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

fully to point out to His Britannic Majesty's Government the serious 
consequences which may result to American vessels and American 
citizens if this practice is continued. 

The occasional use of the flag of a neutral or an enemy under the 
stress of immediate pursuit and to deceive an approaching enemy, 
which appears by the press reports to be represented as the precedent 
and justification used to support this action, seems to this Govern- 
ment a very different thing from an explicit sanction by a belligerent 
government for its merchant ships generally to fly the flag of a neutral 
power within certain portions of the high seas which are presumed 
to be frequented with hostile warships. The formal declaration of 
such a policy of general misuse of a neutral's flag jeopardizes the 
vessels of the neutral visiting those waters in a peculiar degree by 
raising the presumption that they are of belligerent nationality 
regardless of the flag which they may carry. 

In view of the announced purpose of the German Admiralty to en- 
gage in active naval operations in certain delimited sea areas adjacent 
to the coasts of Great Britain and Ireland, the Government of the 
United States would view with anxious solicitude any general use 
of the flag of the United States by British vessels traversing those 
waters. A policy such as the one which His Majesty's Government 
is said to intend to adopt, would, if the declaration of the German 
Admiralty is put in force, it seems clear, afford no protection to 
British vessels, while it would be a serious and constant menace to 
the lives and vessels of American citizens. 

The Government of the United States, therefore, trusts that His 
Majesty's Government will do all in their power to restrain vessels 
of British nationality from the deceptive use of the flag of the 
United States in the sea area defined in the German declaration, since 
such practice would greatly endanger the vessels of a friendly power 
navigating those waters and would even seem to impose upon the 
Government of Great Britain a measure of responsibility for the loss 
of American lives and vessels in case of an attack by a German naval 
force. 

Please present a note to Sir Edward Grey in the sense of the fore- 
going and impress him with the grave concern which this Government 
feels in the circumstances in regard to the safety of American vessels 
and lives in the war zone declared by the German Admiralty. 

You may add that this Government is making earnest representa- 
tions to the German Government in regard to the danger to Ameri- 
can vessels and citizens if the declaration of the German Admiralty 
is put into effect. 

Bryan. 
(Dip. Corr. 5^.) 

No. 20. American note, February 15, 1915, regarding the 
"Wilhelmina." 

The Secretary of State to the American Ambassador at London. 

The department notes that you have been informed by the British 
Government that the cargo of the American steamer Wilhelmina has 
been sent to prize court, but is not yet unloaded. The Government 
of the United States, of course, has no intention of interfering with 
the proper course of judicial procedure in the British prize courts, 
but it deems it proper to bring to the attention of the British Gov- 



THE PROTECTION OE NEUTRAL RIGHTS AT SEA 45 

ernment information which has been received in relation to the char- 
acter and destination of the cargo and to point out certain considera- 
tions prompting the supposition that the seizure may not be justified. 

This Government is informed that the W. L. Green Commission 
Company, an American corporation organized in r89i, which in the 
past has made extensive shipments of goods to Germany, is the sole 
owner of the cargo which consists entirely of foodstuffs consigned to 
the W. L. Green Commission Company, Hamburg, and that the Com- 
pany's manager, now in Europe, has instructions to sell the cargo 
solely to the civilian population of Hamburg. A copy of the ship's 
manifest has been submitted to this Government, accompanied by a 
sworn statement from the Company's manager in which he represents 
that he was instructed to proceed to Germany to dispose of the cargo 
to private purchasers in that country, and not to any belligerent gov- 
ernment nor armed forces of such government, nor to any agent of 
a belligerent government or of its armed forces. 

According to well-established practice among nations, admitted, as 
this Government understands by the Government of Great Britain, 
the articles of which the IVilJiclmiua's cargo is said to consist, are 
subject to seizure as contraband only in case they are destined for 
the use of a belligerent government or its armed forces. The Gov- 
ernment of the United States understands that the British authorities 
consider the seizure of the cargo justified on the ground that a recent 
order of the Federal Council of Germany, promulgated after the 
vessel sailed, required the delivery of imported articles to the German 
Government. The owners of the cargo have represented to this Gov- 
ernment that such a position is untenable. They point out that, by 
a provision of the order in question as originally announced, the 
regulations in relation to the seizure of food products are made in- 
applicable to such products imported after January thirty-one, nineteen 
fifteen. They further represent that the only articles shipped on the 
IVilhchnma which are embraced within the terms of these regulations 
are wheat and bran, which constitute about fifteen per centum of the 
cargo as compared with eighty-five per centum consisting of meats, 
vegetables, and fruits. The owners also assert that the regulations 
contemplate the disposition of foodstuffs to individuals through mu- 
nicipalities ; that municipalities are not agents of the Government, 
and that the purpose of the regulations is to conserve the supply of 
food products and to prevent speculation and inflation of prices to 
noncombatants. 

The German Government has addressed a formal communication to 
the Government of the United States in relation to the effect of the 
decree issued by the German Federal Council, and this Government 
deems it pertinent to call to the attention of the British Government 
a material portion of this communication, which is as follows: 

" r. The Federal Council's decision concerning the seizure of food 
products, which England alleges to be the cause of food products 
shipped to Germany being treated as contraband, bears exclusively 
6n wheat, rye, both unmixed and mixed with other products, and 
also wheat, rye, oats, and barley flour. 

" 2. The Federal Council makes an express exception in section 
forty-five of the order. Section forty-five provides as follows : The 
stipulations of this regulation do not apply to grain or flour imported 
from abroad after January thirty-one. 

"3. Conjunctively with that saving clause the Federal Council'^ 



46 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

order contains a provision under which imported cereals and flours 
would be sold exclusively to the municipalities or certain specially 
designated organizations by the importers. Although that provision 
had for its object simply to throw imported grain and flours into such 
channels as supply the private consumption of civilians and, in conse- 
quence of that provision, the intent and purpose of the Federal Coun- 
cil's order which was to protect the civilian population from spec- 
ulators and engrossers were fully met, it was nevertheless rescinded 
so as to leave no room for doubt. 

"4. My Government is amenable to any proposition looking to 
control by a special American organization under the supervision 
of the American Consular officers and, if necessary, will itself make a 
proposition in that direction. 

" 5. The German Government further calls attention to the fact 
that municipalities do not form part of or belong to the Government 
but are self-administrative bodies, which are elected by the inhab- 
itants of the Commune in accordance with fixed rules and therefore 
exclusively represent the private part of the population and act as 
it directs. Although those principles are generally known and obtain 
in the United States as well as in England itself, the German Gov- 
ernment desired to point out th^ fact so as to avoid any further 
unnecessary delay. 

" 6. Hence it is absolutely assured that imported food products 
will be consumed by the civilian population in Germany exclusively." 

It will be observed that it is stated in this communication, which 
appears to confirm the contentions of the cargo owners, that a part 
of the order of the German Federal Council relating to imported 
food products has now been rescinded. 

This Government has received another communication from the 
German Government giving formal assurance to the Government of 
the United States that all goods imported into Germany from the 
United States directly or indirectly, which belong to the class of 
relative contraband, such as foodstuffs, will not be used by the Ger- 
man army or navy or by Government authorities, but will be left to 
the free consumption of the German civilian population, excluding all 
Government purveyors. 

If the British authorities have not in their possession evidence, 
other than that presented to this Government as to the character 
and destination of the cargo of the Wilhclm.ina, sufficient to warrant 
the seizure of this cargo, the Government of the United States hopes 
that the British Government will release the vessel together with her 
cargo and allow her to proceed to her port of destination. 

Please communicate with the British Government in the sense of 
the foregoing. 

Bryan. 
{Dip. Con\ 81-82.) 

No. 21. German note, February 15, 19 15, in reference to the 
proclamation of January 25 concerning foodstuffs (No. 13). . 

The German Ambassador to the Secretary of State. 

I. The Federal Council's decision concerning the seizure of food 
products, v^^hich England alleges to be the cause of food products 
shipped to Germany being treated as contraband, is exclusively on 
" wheat, rye, both unmixed and mixed with other products," and also 
"wheat, rye, oats, and barley flour." 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 47 

2. The Federal Council makes an express exception in Section 45 
of the order. Section 45 provides as follows: "The stipulations of 
this regulation do not apply to grain or flour imported from abroad 
after January 31." 

3. Conjunctively with that saving clause, the Federal Council's order 
contains a provision under which imported cereals and flours could 
be sold exclusively to the municipalities of certain specially designated 
organizations by the importers. Although that provision had for 
its object simply to throw imported grain and flour into such channels 
as supply the private consumption of civilians, and, in consequence 
of that provision, the intent and purpose of the Federal Council's 
order, which was to protect the civilian population from speculators 
and engrossers, were fully met, it was nevertheless rescinded so as 
to leave no room for doubt. 

4. My Government is amenable to any proposition looking to con- 
trol by a special American organization under the supervision of the 
American Consular officers, and, if necessary, will itself make a 
proposition in that direction. 

5. The German Government further calls attention to the fact that 
municipalities do not form part of or belong to the Government, but 
are " self-administrative bodies," which are elected by the inhab- 
itants of the commune in accordance with fixed rules, and, therefore, 
exclusively represent the private part of the population and act as 
it directs. Although these principles are generally known and obtain 
in the United States, as well as in England itself, the German Gov- 
ernment desired to point out the fact so as to avoid any further 
unnecessary delay. 

6. Hence it is absolutely assured that imported food products will 
be consumed by the civilian population in Germany exclusively, and 
there remains no doubt upon which England can prevent the exporta- 
tion of food products from America to Germany for the use of 
civilians. 

The Imperial Government expresses the firm hope that the Amer- 
ican Government will stand on its right in this matter. 
(The Nezv York Times, February 18, 191 5.) 

No. 22. German statement, February 15, 1915, in regard to 
armed British merchantmen, the use of neutral flags and the 
mining of the war zone. 

Paraphrase of a note from the German Ambassador to the Secre- 
tary of State. 

According to absolutely reliable information British merchant ships 
intend to oppose armed resistance to German men-of-war in the area 
declared as war zone by the German Admiralty. 

Some of these ships were already armed with British naval guns. 
Now all the others are speedily being equipped in a similar way. 
Merchant ships have been instructed to sail in groups, and to ram 
German submarines, while the examination is proceeding, or should 
the submarines lie alongside, to throw bombs upon them, or else to 
attempt to overpower the examining jiarty coming on board. 

A very high premium has been offered for the destruction of the 
first German submarine by a British merchant vessel. Therefore, 
British merchant ships cannot any more be considered as undefended, 
so that they may be attacked by German war vessels without warn- 



48 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

ing or search. The British admitted that instructions had been given 
to misuse neutral flags. It is almost certain that British merchant 
vessels will by all means try to conceal their identity. Thereby, it 
also becomes almost impossible to ascertain the identity of neutral 
ships, unless they sail in daylight under convoy, as all measures sug- 
gested by neutrals, for instance, painting of the ships, in the national 
colours, may be promptly imitated by British ships. The attacks to 
be expected by masked British merchant vessels make a search im- 
possible, as the examining party and the submarines themselves would 
thereby be exposed to destruction. 

Under the circumstances, the safety of neutral shipping in the war 
zone around the British Isles is seriously threatened. There is also 
an increased danger resulting from mines, as these will be laid in the 
war zone to .a great extent. Accordingly, neutral ships are urgently 
warned against entering that area, while the course around Scotland 
will be safe. 

Germany has been compelled to resort to this kind of warfare by 
the murderous ways of British naval warfare, which aims at the 
destruction of legitimate neutral trade and at the starvation of the 
German people. Germany will be obliged to adhere to these an- 
nounced principles till England submits to the recognized rules of 
warfare, established by the Declarations of Paris and London, or till 
she is compelled to do so by the neutral powers. 

{The New York Times, February i6, 191 5.) 

No. 23. German note, February 16, 19 15, replying to the 
American note of February 10 (No. 18), in regard to the dec- 
laration of a war zone. 

The Minister for Foreign Affairs to the American Ambassador . 

In reference to the note of the twelfth instant. Foreign Office 
number twenty-two sixty, relative to the German measures respect- 
ing the theater of war in the waters surrounding England, the under- 
signed has the honor to reply to His Excellency the Ambassador of 
the United States, James W. Gerard, as follows: 

The Imperial German Government have examined the communi- 
cation of the Government of the United States in the same spirit of 
good will and friendship which seems to have prompted this com- 
munication. 

The Imperial German Government are in entire accord with the 
Government of the United States that it is in the highest degree 
desirable for all parties to avoid the misunderstanding which might 
arise from the measures announced by the German Admiralty and 
to^ avert the intrusion of events calculated to interrupt the most 
friendly relations which have so happily existed between the two 
Governments up to this time. 

On this assurance the German Government believe that they may 
depend on full understanding on the part of the United States, all 
the more because the action announced by the German Admiralty, as 
was dwelt upon at length in the note of the fourth instant, is in no wise 
directed against the legitimate trade and navigation of neutral states, 
but merely represents an act of self-defense which Germany's vital 
interests force her to take against England's method of conducting 
maritime w^ar in defiance of international law, which no protest on 
the part of neutrals has availed to brinj? into accordance witli the 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



49 



legal status generally recognized before the outbreak of hostilities. 

In order to exclude all possible doubt on this cardinal point the 
German Government beg to set forth once more the actual situation. 

Up to now Germany has scrupulously observed the existing provi- 
sions of international law relative to maritime war. In particular 
she assented without delay to the proposal made by the American 
Government directly after the war began to ratify the Declaration 
of London and embodied the contents thereof without change in her 
prize law, even without formally binding herself in this direction. 
The German Government have adhered to these provisions, even 
where they conflicted with military interests. Our Government at 
the same time have permitted the supply of food by Denmark to 
England until the present, although they could well have prevented 
this traffic by means of their naval forces. 

In direct opposition to this, England has not shrunk from grave 
violations of international law wherever she could thereby cripple 
Germany's peaceable trade with neutral countries. It will not be 
necessary for the German Government to go into great detail on 
this point, especially since the American note to the British Govern- 
ment dated December twenty-eighth, nineteen fourteen, which has 
been brought to their knowledge, has dealt with this point very 
aptly if not very exhaustively on the ground of the experiences of 
months. 

It is conceded that the intention of all these aggressions is to cut 
off Germany from all supplies and thereby to deliver up to death by 
famine a peaceful civilian population, a procedure contrary to law 
of war and every dictate of humanity. 

The neutrals have not been able to prevent this interception of 
different kinds of trade with Germany contrary to international law. 
It is true that the American Government have protested against Eng- 
land's procedure, and Germany is glad to acknowledge this, but in 
spite of this protest and the protests of the other neutral Govern- 
ments England has not allowed herself to be dissuaded from the 
course originally adopted. Thus, the American ship Wilhelmina was 
recently brought into port by England, although her cargo was 
destined solely for the civil population of Germany and was to be 
used only for this purpose according to an express declaration of the 
German Government. 

In this way the following has been created: Germany is to all 
intents and purposes cut off from oversea supplies with the toleration, 
tacit or protesting, of the neutrals regardless of whether it is a 
question of goods which are absolute contraband or only conditional 
contraband or not contraband at all, following the law generally 
recognized before the outbreak of the war. On the other hand 
England with the indulgence of neutral Governments is not only 
being provided with such goods as are not contral)and or merely 
conditional contraband, namely, foodstuffs, raw material, et cetera, 
although these are treated by England when Germany is in question 
as absolute contraband, but also with goods which have been reg- 
ularly and unquestionably acknowledged to be absolute contraband. 
The German Government believe that they are obliged to point out 
very particularly and with the greatest emphasis, that a trade in arms 
exists between Americar^ manufacturers and Germany's enemies which 
is estimated at manv hundred million marks. 

The German Government have given due recognition to the fact 



50 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

that as a matter of form the exercise of rights and the toleration of 
wrong on the part of neutrals is limited by their pleasure alone and 
involves no formal breach of neutrality. The German Government 
have not in consequence made any charge of formal breach of 
neutrality. The German Government cannot, however, do otherwise, 
especially in the interest of absolute clearness in the relations be- 
tween the two countries, than to emphasize that they, in common 
with the public opinion in Germany, feel themselves placed at a great 
disadvantage through the fact that the neutral powers have hitherto 
achieved no success or only an unmeaning success in their assertion 
of the right to trade with Germany, acknowledged to be legitimate 
by international law, whereas they make unlimited use of their right 
to tolerate trade in contraband with England and our other enemies* 
Conceded that it is the formal right of neutrals not to protect their 
legitimate trade with Germany and even to allow themselves know- 
ingly and willingly to be induced by England to restrict such trade, 
it is on the other hand not less their good right, although unfor- 
tunately not exercised, to stop trade in contraband, especially the 
trade in arms, with Germany's enemies. 

In view of this situation the German Government see themselves 
compelled, after six months of patience and watchful waiting, to meet 
England's murderous method of conducting maritime war with drastic 
counter measures. If England invokes the powers of famine as an 
ally in its struggle against Germany with the intention of leaving a 
civilized people the alternative of perishing in misery or submitting 
to the yoke of England's political and commercial will, the German 
Government are to-day determined to take up the gauntlet and to 
appeal to the same grim ally. They rely on the neutrals who have 
hitherto tacitly or under protest submitted to the consequences, detri- 
mental to themselves, of England's war of famine to display not 
less tolerance toward Germany, even if the German measures consti- 
tute new forms of maritime war, as has hitherto been the case with 
the English measures. 

In addition to this, the German Government are determined to 
suppress with all the means at their disposal the supply of war 
material to England and her allies and assume at the same time 
that it is a matter of course that the neutral Governments which 
have hitherto undertaken no action against the trade in arms which 
(sic) [with] Germany's enemies do not intend to oppose the forcible 
suppression of this trade by Germany. 

Proceeding from these points of view the German Admiralty has 
declared the zone prescribed by it the seat of war; it will obstruct 
this area of maritime war by mines wherever possible and also 
endeavor to destroy the merchant vessels of the enemy in any other 
way. 

It is very far indeed from the intention of the German Government, 
acting in obedience to these compelling circumstances, ever to de- 
stroy neutral lives and neutral property, but on the other hand they 
cannot be blind to the fact that dangers arise through the action to be 
carried out against England which menace without discrimination 
all trade within the area of maritime war. This applies as a matter 
of course to war mines, which place any ship approaching a mined 
area in danger, even if the limits of international law are adhered 
to most strictly. 

The German Government believe that they are all the more justi- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 51 

fied in the hope that the neutral powers will become reconciled with 
this, just as they have with the serious injury caused them thus far 
by England's measures, because it is their will to do everything in 
any way compatible with the accomplishment of their purpose for 
the protection of neutral shipping even within the area of maritime 
war. 

They furnish the first proof of their good will by announcing the 
measures intended by them at a time not less than two weeks before- 
hand, in order to give neutral shipping an opportunity to make the 
necessary arrangements to avoid the threatening danger. The safest 
method of doing this is to stay away from the area of maritime war. 
Neutral ships entering the closed waters in spite of this announce- 
ment, given so far in advance, and which seriously impairs the 
accomplishment of the military purpose against England, bear their 
own responsibility for any unfortunate accidents. The German Gov- 
ernment on their side expressly decline all responsibility for such 
accidents and their consequences. 

Furthermore, the German Government announced merely the de- 
struction of enemy merchant vessels found within the area of mari- 
time war, and not the destruction of all merchant vessels, as the 
American Government appear to have erroneously understood. This 
limitation which the German Government have imposed upon them- 
selves impairs the military purpose, especially since the presumption 
will prevail, even in the case of neutral ships, that they have contra- 
band on board, in view of the interpretation of the idea of contraband 
in which the English Government have indulged as regards Germany 
and which the German Government 'will accordingly apply against 
England. 

Naturally the Imperial Government are not willing to waive the 
right to establish the presence of contraband in the cargoes of neutral 
ships and, in cases requiring it, to take any action necessary on the 
grounds established. Finally the German Government are prepared 
to accord, in conjunction with the American Government, the most 
earnest consideration to any measure that might be calculated to 
insure the safety of legitimate shipping of neutrals within the seat 
of war. They cannot, however, overlook the fact that all efforts in 
this .direction are considerably hampered by two circumstances: 
First, by the misuse of the neutral flag by English merchant vessels, 
which in the meantime has probably been established beyond a doubt 
by the American Government likewise. Second, by the above-men- 
tioned trade in contraband, especially war materials, by neutral mer- 
chant vessels. In regard to the latter point, the German Government 
ventures to hope that the American Government upon reconsideration 
will see their way clear to a measure of intervention in accordance 
with the spirit of true neutrality. 

As regards the first point, the secret order of the British Admiralty 
has already been communicated to the American Government by 
Germany. It recommends English merchant vessels to use neutral 
flags and has in the meantime been confirmed by a statement of the 
British Foreign Office which refers to the municipal law of England 
and characterizes such action as quite unobjectionable. The English 
merchant marine has followed this counsel without delay, as is 
probably known to tire American Government, from the cases of the 
Liisifama and Laertes. Moreover, the British Government^ have 
armed English merchant vessels and instructed them to resist by 



52 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



force the German submarines. In these circumstances it is very 
difficult for the German submarines to recognize neutral merchant 
vessels as such, for even a search will not be possible in the majority 
of cases, since the attacks to be anticipated in the case of a disguised 
English ship would expose the commanders conducting a search and 
the boat itself to the danger of destruction. 

The British Government would then be in a position to render the 
German measures illusory if their merchant marine persists in the 
misuse of neutral flags and neutral vessels are not marked in some 
other manner admitting of no possible doubt. Germany must, in 
the exigency into which she has unlawfully been forced, make her 
measures effective at all events in order thereby to compel her 
adversary to conduct maritime warfare in accordance with inter- 
national law and thus to reestablish the freedom of the seas which 
she has ever advocated and iot which she is fighting likewise to-day. 

The German Government, therefore, welcomes the fact that the 
American Government have made representations to the British 
Government relative to the use of their flag contrary to law and give 
expression to the expectation that this action will cause England to 
respect the American flag in future. 

In this expectation the commanders of the German submarines 
have been instructed, as was already stated in the note of fourth 
instant, to abstain from violence to American merchant vessels when 
they are recognizable as such. 

In order to meet in the safest manner all the consequences of mis- 
taking an American for a hostile merchant vessel the German Gov- 
ernment recommended that (although this would not apply in the 
case of danger from mines) the United States convoy their ships 
carrying peaceable cargoes and traversing the English seat of mari- 
time war in order to make them recognizable. In this connection the 
German Government believe it should be made a condition that only 
such ships should be convoyed as carry no merchandise which would 
have to be considered as contraband according to the interpretation 
applied by England against Germany. The German Government are 
prepared to enter into immediate negotiations with the American Gov- 
ernment relative to the manner of convoy. They would, however, 
be particularly grateful if the American Government would urgently 
advise their merchant vessels to avoid the English seat of maritime 
war, at any rate until the flag question is settled. 

The German Government resign themselves to the confident hope 
that the American Government will recognize the full meaning of 
the severe struggle which Germany is conducting for her very exist- 
ence and will gain full understanding of the reasons which prompt 
Germany and the aims of the measures announced by her from the 
above explanations and promises. 

_ The German Government repeat that in the scrupulous considera- 
tion for neutrals hitherto practiced by them they have determined 
upon the measures planned only under the strongest compulsion of 
national self-preservation. Should the American Government at the 
eleventh hour succeed in removing, by virtue of the weight which 
they have the right and ability to throw into the scales of the fate 
of peoples, the reasons which have made it the imperative duty of 
the German Government to take the action indicated, should the 
American Government in particular find a way to bring about the 
observation of the Declaration of London on the part of the Powers 



1 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 53 

at war with Germany and thercl)y to render possible for Germany 
the legitimate supply of foodstuffs and industrial raw materials, the 
German Government would recognize this as a service which could 
not be too highly estimated in favor of more humane conduct of war 
and would gladly draw the necessary conclusions from the new situa- 
tion thus created. 

The undersigned requests the Aml)assador to bring the above to 
the attention of the American Government and avails himself of the 
opportunity to renew, et cetera. 

■VoN Jagow. 
{Dip. Corr. 56-59.) 

No. 24. British memorandum, February 19, 1915, concerning 
the use of the American flag by British vessels.* 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

The memorandum communicated on the nth February calls atten- 
tion in courteous and friendly terms to the action of the captain of 
the British S. S. Ltisitania in raising the Hag of the United States of 
America when approaching British waters and says that the Govern- 
ment of the United States feel a certain anxiety in considering the 
possibility of any general use of the flag of the United States by 
British vessels traversing those waters since the effect of such a 
policy might be to bring about a menace to the lives and vessels of 
United States citizens. 

It was understood that the German Government had announced 
their intention of sinking British merchant vessels at sight by tor- 
pedoes without giving any opportunity of making any provision for 
saving the lives of noncombatant crews and passengers. It was in 
consequence of this threat that the Lusitania raised the United States 
flag on her inward voyage and on her subsequent outward voyage. A 
request was made by the United States passengers who were embark- 
ing on board her that the United States flag should be hoisted pre- 
sumably to insure their safety. Meanwhile the memorandum from 
Your Excellency had been received. His Majesty's Government did 
not give any advice to the company as to how to meet this request 
and it is understood that the Lusitania left Liverpool under the British 
flag. 

It seems unnecessary to say more as regards the Lusitania in par- 
ticular regard to the use of foreign flags by merchant vessels. The 
British merchant shipping act makes it clear that the use of the Brit- 
ish flag by foreign merchant vessels is permitted in time of war for 
the purpose of escaping capture. It is believed that in the case of 
some other nations there is a similar recognition of the same practice 
with regard to their flags and that none have forbidden it. It would 
therefore be unreasonable to expect His Majesty's Ciovernment to 
pass legislation forbidding the use of foreign flags by British merchant 
vessels to avoid capture by the enemy. Now that the German Govern- 
ment have announced their intention to sink merchant vessels at sight 
with their noncom1)atant crews, cargoes, and papers, a proceeding 
hitherto regarded by the opinion of the world not as war, but as 
piracv, it is felt that'the United States Government could not fairly 
ask the British Government to order British merchant vessels to 

* See No. 19. 



54 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

forego the means — always hitherto permitted — of escaping not only 
capture but the much worse fate of sinking and destruction. Great 
Britain has always when neutral accorded to the vessels of other 
States at war liberty to use the British flag as a means of protection 
against capture, and instances are on record when United States 
vessels availed themselves of this facility during the American Civil 
War, It would be contrary to fair expectation if now when the 
conditions are reversed the United States and neutral nations were 
to grudge to British ships liberty to take similar action. The British 
Government have no intention of advising their merchant shipping 
to use foreign flags as general practice or to resort to them otherwise 
than for escaping capture or destruction. 

The obligation upon a belligerent warship to ascertain definitely 
for itself the nationality and character of a merchant vessel before 
capturing it and " a fortiori " before sinking and destroying it has 
been universally recognized. If that obligation is fulfilled, hoisting 
a neutral flag on board a British vessel cannot possibly endanger neu- 
tral shipping and the British Government hold that if loss to neutrals 
is caused by disregard of this obligation it is upon the enemy vessel 
disregarding it and upon the Government giving orders that it should 
be disregarded that the sole responsibility for injury to neutrals ought 
to rest. 

{Dip. Corr. 5p.) 

No. 25. British memorandum, February 19, 1915, regarding 
the "Wilhelmina."* 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

The communication made by the United States Ambassador in his 
note to Sir Edward Grey of the sixteenth instant has been carefully 
considered and the following observations are offered in reply : — 

2. At the time when His Majesty's Government gave directions for 
the seizure of the cargo of the steamship Wilhelmina as contraband 
they had before them the text of the decree made by the German 
Federal Council on the twenty-fifth January, under Article forty-five 
of which all grain and flour imported into Germany after the thirty- 
first January was declared deliverable only to certain organizations 
under direct government control or to municipal authorities. The 
vessel was bound for Hamburg, one of the free cities of the German 
Empire, the government of which is vested in the municipality. This 
was one of the reasons actuating His Majesty's Government in de- 
ciding to bring the cargo of the Wilhelmina before the prize court. 

3. Information has only now reached them that by a subsequent 
decree, dated the sixth February, the above provision in Article forty- 
five of the previous decree was repealed, it would appear for the 
express purpose of rendering difficult the anticipated proceedings 
against the Wilhelmina. The repeal was not known to His Majesty's 
Government at the time of detention of the cargo, or indeed, until 
now, 

4. How far the ostensible exception of imported supplies from the 
general Government monopoly of all grain and flour set up by the 
German Government may affect the question of the contraband nature 

* See No. 20. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 55 

of the shipment seized is a matter which will most suitably be in- 
vestigated by the prize court. 

5. It is, however, necessary to state that the German decree is not 
the only ground on which the submission of the cargo of the Wilhcl- 
mina to a prize court is justified. The German Government have in 
public announcements claimed to treat practically every town or port 
on the English East coast as a fortified place and base of operations. 
On the strength of this contention they have subjected to bombard- 
ment the open towns of Yarmouth, Scarborough, and Whitby, among 
others. On the same ground, a number of neutral vessels sailing for 
English ports on the east coast with cargoes of goods on the German 
list of conditional contraband have been seized by German cruisers 
and brought before the German prize court. Again, the Dutch vessel 
Maria, havnig sailed from California with a cargo of grain consigned 
to Dublin and Belfast, was sunk in September last by the German 
cruiser Karlsruhe. This could only have been justified if, among 
other things, the cargo could have been proved to be destined for 
the British Government or armed forces and if a presumption to this 
effect had been established owing to Dublin or Belfast being con- 
sidered a fortified place or a base for the armed forces. 

6. The German Government cannot have it both ways. If they 
consider themselves justified in destroying by bombardment the lives 
and property of peaceful civil inhabitants of English open towns and 
watering places, and in seizing and sinking ships and cargoes of condi- 
tional contraband on the way thither, on the ground that they were 
consigned to a fortified place or base, "a fortiori" His Majesty's 
Government must be at liberty to treat Hamburg, which is in part 
protected by the fortifications at the mouth of the Elbe, as a fortified 
town, and a base of operations and supply for the purposes of Article 
thirty-four of the Declaration of London. If the owners of the cargo 
of the WiUiclniina desire to question the validity in international law 
of the action taken by order of His Majesty's Government they will 
have every opportunity of establishing their case in due course before 
the prize court, and His Majesty's Government would, in this con- 
nection, recall the attention of the United States Government to the 
considerations put forward in Sir Edward Grey's note to Mr. Page 
of the tenth instant as to the propriety of awaiting the result of prize 
court proceedings before diplomatic action is initiated. It will be 
remembered that they have from the outset given a definite assurance 
that the owners of the Wilhchnina, as well as the owners of her 
cargo, if found to be contraband would be equitably indemnified. 

7. There is one further observation to which His Majesty's Govern- 
ment think it right, and appropriate in the present connection, to 
give expression. They have not, so far, declared foodstuffs to be 
absolute contraband. They have not interfered with any neutral ves- 
sels on account of their carrying foodstuffs, except on the basis of 
such foodstuffs being liable to capture if destined for the enemy forces 
or governments. In so acting they have been guided by the general 
principle, of late universally upheld by civilized nations, and observed 
in practice, that the civil populations of countries at war are not to 
be exposed to the treatment rightly reserved for combatants. This 
distinction has to all intents and purposes been swept away by the 
novel doctrines proclaimed and acted upon by the German Govern- 
ment 



56 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

8. It is unnecessary here to dwell upon the treatment that has been 
meted out to the civil population of Belgium, and those parts of 
France which are in German occupation. When Germany, long 
before any mines had been laid by British authorities, proceeded to 
sow mines upon the high seas, and, by this means, sunk a considerable 
number not only of British but also of neutral merchantmen with their 
unoffending crews, it was, so His Majesty's Government held, open 
to them to take retaliatory measures, even if such measures were 
of a kind to involve pressure of the civil population — not indeed of 
neutral states — but of their enemies. They refrained from doing so. 

9. When, subsequently, English towns and defenseless British sub- 
jects, including women and children, were deliberately and systemat- 
ically fired upon and killed by ships flying the flag of the Imperial 
German navy, when quiet country towns and villages, void of defenses, 
and possessing no military or naval importance, were bombarded by 
German airships. His Majesty's Government still abstained from draw- 
ing the logical consequences from this form of attack on defenseless 
citizens. Further steps in the same direction are now announced, 
and in fact have already been taken, by Germany. British merchant 
vessels have been torpedoed at sight without any attempt being made 
to give warning to the crew, or any opportunity being given to save 
their lives, a torpedo has been fired against a British hospital ship in 
daylight, and similar treatment is threatened to all British merchant 
vessels in future as well as to any neutral ships that may happen to 
be found in the neighborhood of the British Isles. 

10. Faced with this situation, His Majesty's Government consider 
it would be altogether unreasonable that Great Britain and her allies 
should be expected to remain indefinitely bound, to their grave detri- 
ment, by rules and principles of which they recognize the justice if 
impartially observed as between belligerents, but v/hich are at the 
present moment openly set at defiance by their enemy. 

11. If, therefore, His Majesty's Government should hereafter feel 
constrained to declare foodstuffs absolute contraband, or to take other 
measures for interfering with German trade, by way of reprisals, 
they confidently expect that such action will not be challenged on the 
part of neutral states by appeals to laws and usages of war whose 
validity rests on their forming an integral part of that system of 
international doctrine which as a whole their enemy frankly boasts 
the liberty and intention to disregard, so long as such neutral states 
cannot compel the German Government to abandon methods of war- 
fare which have not in recent history been regarded as having the 
sanction of either law or humanity. 

(Dip. Corr. 82-83.) 

No. 26. American note, February 20, 1915, proposing mutual 
concessions in the conduct of naval warfare. 

The Secretary of State to the American Ambassador at London.* 
You will please deliver to Sir Edward Grey the following identic 
note which we are sending England and Germany: 

In view of the correspondence which has passed between this 
Government and Great Britain and Germany respectively, relative 
to the Declaration of a war zone by the German Admiralty and the 
use of neutral flags by British merchant vessels, this Government 

* Same to the American Ambassador at Berlin. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 57 

ventures to express the hope that the two belHgerent Governments 
may, through reciprocal concessions, find a basis for agreement 
which will relieve neutral ships engaged in peaceful commerce from 
the great dangers which they will incur in the high seas adjacent 
to the coasts of the belligerents. 

The Government of the United States respectfully suggests that 
an agreement in terms like the following might be entered into. 
This suggestion is not to be regarded as in any sense a proposal made 
by this Government, for it of course fully recognizes that it is not 
its privilege to propose terms of agreement between Great Britain 
and Germany, even though the matter be one in which it and the 
people of the United States are directly and deeply interested. It 
is merely venturing to take the liberty which it hopes may be accorded 
a sincere friend desirous of embarrassing neither nation involved and 
of serving, if it may, the common interests of humanity. The course 
outlined is offered in the hope that it may draw forth the views and 
elicit the suggestions of the British and German Governments on a 
matter of capital interest to the whole world. 

Germany and Great Britain to agree: 

1. That neither will sow any floating mines, whether upon the high 
seas or in territorial waters; that neither will plant on the high seas 
anchored mines except within cannon range of harbors for defen- 
sive purposes only; and that all mines shall bear the stamp of 
the Government planting them and be so constructed as to become 
harmless if separated from their moorings. 

2. That neither will use submarines to attack merchant vessels 
of any nationality except to enforce the right of visit and search. 

3. That each will require their respective merchant vessels not 
to use neutral flags for the purpose of disguise or ruse de guerre. 

Germany to agree : 

That all importations of food or foodstuffs from the United States 
(and from such other neutral countries as may ask it) into Germany 
shall be consigned to agencies to be designated by the United States 
Government; that these American agencies shall have entire charge 
and control without interference on the part of the German Gov- 
ernment, of the receipt and distribution of such importations, and 
shall distribute them solely to retail dealers bearing licenses from the 
German Government entitling them to receive and furnish such 
food and foodstuffs to noncombatants only; that any violation of 
the terms of the retailers' licenses shall work a forfeiture of their 
rights to receive such food and foodstuffs for this purpose; and that 
such food and foodstuffs will not be requisitioned by the German 
Government for any purpose whatsoever or be diverted to the use 
of the armed forces of Germany. 

Great Britain to agree: 

That food and foodstuffs will not be placed upon the absolute con- 
traband list and that shipments of such commodities will not be 
interfered with or detained by British authorities if consigned to 
agencies designated by the United States Government in Germany 
for the receipt and distribution of such cargoes to licensed German 
retailers for distribution solely to the noncombatant population. 

In submitting this proposed basis of agreement this Government 
does not wish to be understood as admitting or denying any belliger- 
ent or neutral right established by the principles of international law, 
but would consider the agreement, if acceptable to the mterested 



58 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

powers, a modus vivendi based upon expediency rather than legal 
right and as not binding upon the United States either in its present 
form or in a modified form until accepted by this Government. 

Bryan. 
{Dip. Corr. 59-60.) 

No. 27. German note, February 28, 1915, accepting in sub- 
stance the American proposal of February 20 (No. 26). 

The Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to inform His Excellency, Mr. 
James W. Gerard, Ambassador of the United States of America, 
in reply to the note of the 22d instant that the Imperial German 
Government have taken note with great interest of the suggestion 
of the American Government that certain principles for the conduct 
of maritime war on the part of Germany and England be agreed 
upon for the protection of neutral shipping. They see therein new 
evidence of the friendly feelings of the American Government toward 
the German Government which are fully reciprocated by Germany. 

It is in accordance with Germany's wishes also to have maritime 
war conducted according to rules which without discriminately re- 
stricting one or the other of the belligerent powers in the use of 
their means of warfare are equally considerate of the interests of 
neutrals and the dictates of humanity. Consequently it was inti- 
mated in the German note of the i6th instant that observation of 
the Declaration of London on the part of Germany's adversaries 
would create a new situation from which the German Government 
would gladly draw the proper conclusions. 

Proceeding from this view, the German Government have carefully 
examined the suggestion of the American Government and believe 
that they can actually see in it a suitable basis for the practical 
solution of the questions which have arisen. 

With regard to the various points of the American note they beg 
to make the following remarks: 

1. With regard to the sowing of mines, the German Government 
would be willing to agree as suggested not to use floating mines 
and to have anchored mines constructed as indicated. Moreover, 
they agree to put the stamp of the Government on all mines to be 
planted. On the other hand, it does not appear to them to be feasible 
for the belligerents wholly to forego the use of anchored mines for 
offensive purposes. 

2. The German Government would undertake not to use their sub- 
marines to attack mercantile of any flag except when necessary to 
enforce the right of visit and search. Should the enemy nationality 
of the vessel or the presence of contraband be ascertained submarine 
would proceed in accordance with the general rules of international 
law. 

3. As provided in the American note, this restriction of the use of 
the submarines is contingent on the fact that enemy mercantile 
abstain from the use of the neutral flag and other neutral distinctive 
marks. It would appear to be a matter of course that such mer- 
cantile also abstain from arming themselves and from all resistance 
by force, since such procedure contrary to international law would 
render impossible any action of the submarine? in accordance with 
international law. 

4. The regulation of legitimate importations of food into Ger- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 59 

many suggested by the American Government appears to be in gen- 
eral acceptable. Such regulation would, of course, be confined to 
importations by sea, but that would on the other hand include indirect 
importations by way of neutral ports. The German Government 
would, therefore, be willing to make the declarations of the, nature 
provided in the American note so that the use of the imported food 
and foodstuffs solely by the noncombatant population would be 
guaranteed. The Imperial Government must, however, in addition 
(. . .)* having the importation of other raw material used by the 
economic system of noncombatants including forage permitted. To 
that end the enemy Governments would have to permit the free entry 
into Germany of the raw materials mentioned in the free list of 
the Declaration of London and to treat materials included in the list 
of conditional contraband according to the same principles as food 
and foodstuffs. 

The German Government venture to hope that the agreement for 
which the American Government have paved the way may be reached 
after due consideration of the remarks made above, and that in this 
way peaceable neutral shipping and trade will not have to suffer 
any more than is absolutely necessary from the unavoidable effects 
of maritime war. These effects could be still further reduced if, 
as was pointed out in the German note of the i6th instant, some way 
could be found to exclude the shipping of munitions of war from 
neutral countries to belligerents on ships of any nationality. 

The German Government must, of course, reserve a definite state- 
ment of their position until such time as they may receive further 
information from the American Government enabling them to see 
what obligations the British Government are on their part willing 
to assume. 

The undersigned avails himself of this occasion, etc. 

(Signed) Von Jagow. 

{Dip. Corr. 60-61.) 

No. 28. British and French declaration, March i, 19 15, in 
restraint of sea-borne commerce with Germany.f 

The British Ambassador at Washington to the Secretary of State. 

Germany has declared that the English Channel, the north and 
west coasts of France, and the waters around the British Isles are a 
war area and has officially notified that all enemy ships found in that 
area will be destroyed and that neutral vessels may be exposed to 
danger. This is in effect a claim to torpedo at sight, without regard 
to the safety of the crew or passengers, any merchant vessel under 
any flag. As it is not in the power of the German Admiralty to 
maintain any surface craft in these waters, this attack can only be 
delivered by submarine agency. 

The law and custom of nations in regard to attacks on commerce 
have always presumed that the first duty of the captor of a merchant 
vessel is to bring it before a prize court where it may be tried, 
where the regularity of the capture may be challenged and where 
neutrals may recover their cargoes. The sinking of prizes is in 
itself a questionable act to be resorted to only in extraordinary cir- 
cumstances and after provision has been made for the safety of all 

* Apparent omission. , . . , tt r /- j 

t Statement read by the British Trime Minister in the House of Commons and 
communicated to the neutral powers. 



6o THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

the crew or passengers, if there are passengers on board. The 
responsibility for discriminating between neutral and enemy vessels, 
and between neutral and enemy cargo, obviously rests with the 
attacking ship, whose duty it is to verify the status and character 
of the vessel and cargo and to preserve all papers before sinking 
or even capturing it. So also is the humane duty of providing for 
the safety of the crews of merchant vessels, whether neutral or 
enemy, an obligation upon every belligerent. 

It is upon this basis that all previous discussions of the law for 
regulating warfare at sea have proceeded. A German submarine, 
however, fulfills none of these obligations; she enjoys no local com- 
mand of the waters in which she operates; she does not take her 
captures within the jurisdiction of a prize court; she carries no 
prize crew which she can put on board a prize; she uses no effective 
means of discriminating between a neutral and an enemy vessel; 
she does not receive on board for safety the crew and passengers 
of the vessel she sinks; her methods of warfare are therefore en- 
tirely outside the scope of any of the international instruments 
regulating operations against commerce in time of war. The Ger- 
man declaration substitutes indiscriminate destruction for regulated 
capture. Germany is adopting these methods against peaceful trad- 
ers and noncombatant crews with the avowed object of preventing 
commodities of all kinds, including food for the civil population, 
from reaching or leaving the British Isles or northern France. 

Her opponents are therefore driven to frame retaliatory measures 
in order in their turn to prevent commodities of any kind from 
reaching or leaving Germany. These measures will, however, be 
enforced by the British and French Governments without risk to 
neutral ships or to neutral or noncombatant life and in strict observ- 
ance of the dictates of humanity. The British and French Govern- 
ments will therefore hold themselves free to detain and take into 
port ships carrying goods of presumed enemy destination, ownership, 
or origin. It is not intended to confiscate such vessels or cargoes 
unless they would otherwise be liable to condemnation. The treat- 
ment of vessels and cargoes which have sailed before this date will 
not be aflfected. 

Cecil Spring Rice. 
{Dip. Corr. 61-62.) 

No. 29. Resolution of Congress, March 4, 1915, safeguard- 
ing the neutrality of American waters. 

Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled that from and after 
the passage of this resolution, and during the existence of a war 
to which the United States is not a party and in order to prevent 
the neutrality of the United States from being violated by the use 
of its territory, its ports, or its territorial waters, as the base of 
operations for the armed forces of a belligerent, contrary to the 
obligations imposed by the law of nations, the treaties to which the 
United States is a party, or contrary to the statutes of the United 
States, the President be, and he is hereby authorized and empowered 
to direct the collectors of customs under the jurisdiction of the 
United States to withhold clearance from any vessel of American 
or foreign registry, or license, which he has reasonable cause to 
believe to be about to carry fuel, arms, ammunition, men, or supplies 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 6i 

to any warship, or tender, or supply ships of a belhgerent nation in 
violation of the obligations of the United States as a neutral nation. 

In case any such vessel of American register or license shall 
depart or attempt to depart from the jurisdiction of the United States, 
without clearance, for any of the purposes, the owner or master, or 
person or persons having charge or command of such vessel, shall 
severally be liable to a fine of not less than $2,000, nor more than 
$10,000, or to imprisonment not to exceed two years, or both ; and in 
addition, such vessels shall be forfeited to the United States. 

That the President of the United States be, and he is hereby 
authorized and empowered to employ such part of the land or naval 
forces of the United States as shall be necessary to carry out the 
purposes of this resolution. 

That the provisions of this resolution shall be deemed to extend to 
all lands and water, continental or insular, within the jurisdiction 
of the United States. 

{The Nczv York Times, March 4, 191 5.) 

No. 30. American note, March 5, 1915, inquiring how the 
restraint upon sea-borne commerce with Germany is to be 
effected.* 

The Secretary of State to the American Ambassador at London. 

In regard to the recent communications received from the British 
and French Governments concerning restraints upon commerce with 
Germany, please communicate with the British foreign office in the 
sense following: 

The difficulty of determining action upon the British and French 
declarations of intended retaliation upon commerce with Germany 
lies in the nature of the proposed measures in their relation to 
commerce by neutrals. 

While it appears that the intention is to interfere with and take 
into custody all ships both outgoing and incoming, trading with 
Germany, which is in effect a blockade of German ports, the rule 
of blockade, that a ship attempting to enter or leave a German port 
regardless of the character of its cargo may be condemned, is not 
asserted. 

The language of the declaration is "the British and French Gov- 
ernments will, therefore, hold themselves free to detain and take 
into port ships carrying goods of presumed enemy destination, 
ownership, or origin. It is not intended to confiscate such vessels 
or cargoes unless they would otherwise be liable to condemnation." 

The first sentence claims a right pertaining only to a state of 
blockade. The last sentence proposes a treatment of ships and 
cargoes as if no blockade existed. The two together present a pro- 
posed course of action previously unknown to international law. 

As a consequence neutrals have no standard by which to measure 
their rights or to avoid danger to their ships and cargoes. The 
paradoxical situation thus created should be changed and the de- 
claring powers ought to assert whether they rely upon the rules 
governing a blockade or the rules applicable when no blockade exists. 

The declaration presents other perplexities. 

The last sentence •quoted indicates that the rules of contraband are 
to be applied to cargoes detained. The rule covering noncontraband 

* See No. 28. 



62 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

articles carried in neutral bottoms is that the cargoes shall be 
released and the ships allowed to proceed. This rule cannot, under 
the first sentence quoted, be applied as to destination. What then 
is to be done with a cargo of noncontraband goods detained under 
the declaration? The same question may be asked as to conditional 
contraband cargoes. 

The foregoing comments apply to cargoes destined for Germany. 
Cargoes coming out of German ports present another problem under 
the terms of the declaration. Under the rules governing enemy 
exports only goods owned by enemy subjects in enemy bottoms are 
subject to seizure and condemnation.' Yet by the declaration it is 
purposed to seize and take into port all goods of enemy " ownership 
and origin." The word " origin " is particularly significant. The 
origin of goods destined to neutral territory on neutral ships is not 
and never has been a ground for forfeiture except in case a block- 
ade is declared and maintained. What then would the seizure 
amount to in the present case except to delay the delivery of the 
goods? The declaration does not indicate what disposition would 
be made of such cargoes if owned by a neutral or if owned by an 
enemy subject. Would a different rule be applied according to 
ownership? If so, upon what principles of international law would 
it rest? And upon what rule if no blockade is declared and main- 
tained could the cargo of a neutral ship sailing out of a German 
port be condemned? If it is not condemned, what other legal course 
is there but to release it? 

While this Government is fully alive to the possibility that the 
methods of modern naval warfare, particularly in the use of the 
submarine for both defensive and offensive operations, may make 
the former means of maintaining a blockade a physical impossibility, 
it feels that it can be urged with great force that there should be 
also some limit to " the radius of activity," and especially so if this 
action by the belligerents can be construed to be a blockade. It 
would certainly create a serious state of affairs if, for example, an 
American vessel laden with a cargo of German origin should escape 
the British patrol in European waters only to be held up by a 
cruiser off New York and taken into Halifax. 

Similar cablegram sent to Paris. 

Bryan. 
(Dip: Corr. 62-6J.) 

No. 31. British proclamation, March 11, 191 5, once more 
revising the list of contraband of war.* 

Whereas on the twenty-third day of December, 1914, we did issue 
our royal proclamation specifying the articles which it was our 
intention to treat as contraband during the continuance of hostilities 
or until we did give further public notice, and 

Whereas it is expedient to make certain additions to the lists con- 
tained in the said proclamation : 

Now, therefore, we do hereby declare, by and with the advice of 
our privy council, that during the continuance of the war or until 
we do give further public notice the following articles will be treated 
as absolute contraband in addition to those set out in our royal 
proclamation aforementioned : 

Raw wool, wool tops and noils and woollen and worsted yarns. 

* See No. lo. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 6^ 

Tin, chloride of tin, tin ore. 

Castor oil. 

Paraffin wax. 

Copper iodide. 

Lubricants. 

Hides of cattle, buffaloes, and horses; skins of calves, pigs, sheep, 
goats, and deer; leather, undressed or dressed, suitable for saddlery, 
harness, military boots, or military clothing. 

Ammonia and its salts whether simple or compound; ammonia 
liquor, urea, aniline, and their compounds. 

And we do hereby declare that the following articles will be 
treated as conditional contraband in addition to those set out in our 
royal proclamation aforementioned : 

Tanning substances of all kinds (including extracts for use in 
tanning). 

And we do hereby further declare that the terms " foodstuffs " 
and "■ feeding stuffs for animals " in the list of conditional contra- 
band contained in our royal proclamation aforementioned shall be 
deemed to include oleaginous seeds, nuts and kernels; animal and 
vegetable oils and fats (other than linseed oil) suitable for use in 
the manufacture of margarine ; and cakes and meals made from 
oleaginous seeds, nuts and kernels. 
{Dip. Corr. 17-18.) 

No. 32. British memorandum, March 13, 1915, rejecting the 
American proposal of February 20 (No. 26). 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

On the 22d of February last I received a communication from 
Your Excellency of the identic note addressed to His Majesty's 
Government and to Germany, respecting an agreement on certain 
points as to the conduct of the war at sea. The reply of the Ger- 
man Government to this note has been published and it is not 
understood from the reply that the German Government are pre- 
pared to abandon the practice of sinking British merchant vessels 
by submarines, and it is evident from their reply that they will not 
abandon the use of mines for offensive purposes on the high seas as 
contrasted with the use of mines for defensive purposes only within 
cannon range of their own harliors as suggested by the Govern- 
ment of the United States. This being so, it might appear unneces- 
sary for the British Government to make any further reply than 
to take note of the German answer. We desire, however, to take 
the opportunity of making a fuller statement of the whole position 
and of our feeling with regard to it. We recognize with sympathy 
the desire of the Government of the United States to see the Euro- 
pean war conducted in accordance with the previously recognized 
rules of international law and the dictates of humanity. It is thus 
that the British forces have conducted the war, and we are not 
aware that these forces, either naval or military, can have laid to 
their charge any improper proceedings, either in the conduct of 
hostilities or in the tr^satment of prisoners or wounded. On the Ger- 
man side it has been very different. 

I. The treatment of civilian inhabitants in Belgumi and the north 
of France has been made public by the Belgian and French Gov- 



64 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

ernments and by those who have had experience of it at first hand. 
Modern history affords no precedent for the sufferings that have been 
inflicted on the defenseless and noncombatant population in the ter- 
ritory that has been in German military occupation. Even the food 
of the population was confiscated until in Belgium an International 
Commission, largely influenced by American generosity and con- 
ducted under American auspices, came to the relief of the population 
and secured from the German Government a promise to spare what 
food was still left in the country though the Germans still continue 
to make levies in money upon the defenseless population for the 
support of the German army. 

2. We have from time to time received most terrible accounts 
of the barbarous treatment to which British officers and soldiers 
have been exposed after they have been taken prisoner while being 
conveyed to German prison camps ; one or two instances have already 
been given to the United States Government founded upon authentic 
and first-hand evidence which is beyond doubt. Some evidence has 
been received of the hardships to which British prisoners of war 
are subjected in the prison camps contrasting, we believe, most 
unfavorably with the treatment of German prisoners in this coun- 
try. We have proposed, with the consent of the United States Gov- 
ernment, that a commission of United States officers should be per- 
mitted in each country to inspect the treatment of prisoners of war. 
The United States Government have been unable to obtain any reply 
from the German Government to this proposal and we remain in 
continuing anxiety and apprehension as to the treatment of British 
prisoners of war in Germany. 

3. At the very outset of the war a German mine layer was dis- 
covered laying a mine field on the high seas. Further mine fields 
have been laid from time to time without warning and so far as 
we know are still being laid on the high seas, and many neutral as 
well as British vessels have been sunk by them. 

4. At various times during the war German submarines have 
stopped and sunk British merchant vessels, thus making the sinking 
of merchant vessels a general practice, though it was admitted pre- 
viously, if at all, only as an exception, the general rule to which the 
British Government have adhered being that merchant vessels, if 
captured, must be taken before a prize court. In one case already 
quoted in a note to the United States Government, a neutral vessel 
carrying foodstuffs to an unfortified town in Great Britain has been 
sunk. Another case is now reported in which a German armed 
cruiser has sunk an American vessel, the William P. Frye, carrying 
a cargo of wheat from Seattle to Queenstown. In both cases the 
cargoes were presumably destined for the civil population. Even 
the cargoes in such circumstances should not have been condemned 
without the decision of a prize court, much less should the vessels 
have been sunk. It is to be noted that both these cases occurred 
before the detention by the British authorities of the Wilhelmina 
and her cargo of foodstuffs which the German Government allege 
is the justification for their own action. The Germans have an- 
nounced their intention of sinking British merchant vessels by tor- 
pedo without notice and without any provision for the safety of the 
crew. They have already carried out this intention in the case of 
neutral as well as of British vessels, and a number of noncombatant 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 65 

and innocent lives on British vessels, unarmed and defenseless, have 
been destroyed in this way. 

5. Unfortified, open, and defenseless towns, such as Scarborough, 
Yarmouth, and Whitby, have been deliberately and wantonly bom- 
barded by German ships of war, causing in some cases considerable 
loss of civilian life, including women and children. 

6. German aircraft have dropped bombs on the east coast of Eng- 
land where there were no military or strategic points to be attacked. 
On the other hand, I am aware of but two criticisms that have been 
made on British action in all these respects: (i) It is said that the 
British naval authorities also have laid some anchored mines on 
the high seas. They have done so, but the mines were anchored and 
so constructed that they would be harmless if they went adrift, and 
no mines whatever were laid by the British naval authorities till 
many weeks after the Germans had made a regular practice of laying 
mines on the high seas. (2) It is said that the British Government 
have departed from the view of international law which they had 
previously maintained that foodstuffs destined for the civil population 
should never be interfered with, this charge being founded on the 
submission to a prize court of the cargo of the IVilhclniina. The 
special considerations affecting this cargo have already been pre- 
sented in a memorandum to the United States Government, and 
I need not repeat them here. Inasmuch as the stoppage of all food- 
stuffs is an admitted consequence of blockade, it is obvious that there 
can be no universal rule based on considerations of morality and 
humanity which is contrary to this practice. The right to stop food- 
stuffs destined for the civil population must therefore in any case be 
admitted if an effective " cordon " controlling intercourse with the 
enemy is drawn, announced, and maintained. Moreover, independ- 
ently of rights arising from belligerent action in the nature of 
blockade, some other nations, differing from the opinion of the Gov- 
ernments of the United States and Great Britain, have held that 
to stop the food of the civil population is a natural and legitimate 
method of bringing pressure to bear on an enemy country, as it is 
upon the defense of a besieged town. It is also upheld on the au- 
thority of both Prince Bismarck and Count Caprivi, and therefore 
presumably is not repugnant to German morality. The following 
are the quotations from Prince Bismarck and Count Caprivi on this 
point. Prince Bismarck, in answering, in 1885, an application from 
the Kiel Chamber of Commerce for a statement of the view of the 
German Government on the question of the right to declare as con- 
traband foodstuffs that were not intended for military forces, said: 
" I reply to the chamber of commerce that any disadvantage our 
commercial and carrying interests may suffer by the treatment of 
rice as contraband of war does not jHfstify our opposing a measure 
which it has been thought fit to take in carrying on a foreign war. 
Every war is a calamity which entails evil consequences, not only 
on the combatants but also on neutrals. These evils may easily be 
increased by the interference of a neutral power with the way in 
which a third carries on the war to the disadvantage of the subjects 
of the interfering power, and by this means German commerce might 
be weighted with ^ar heavier losses than a transitory prohibition of 
the rice trade in Chinese waters. The measure in question has for 
its object the shortening of the war by increasing the difficulties of 



66 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

the enemy, and is a justifiable step in war if impartially enforced 
against all neutral ships." Count Caprivi, during a discussion in the 
German Reichstag on the 4th of March, 1892, on the subject of the 
importance of international protection for private property at sea, 
made the following statements : " A country may be dependent for 
her food or for her raw products upon her trade. In fact, it may be 
absolutely necessary to destroy the enemy's trade." ..." The pri- 
vate introduction of provisions into Paris was prohibited during the 
siege, and in the same way a nation would be justified in preventing 
the import of food and raw produce." The Government of Great 
Britain have frankly declared, in concert with the Government of 
France, their intention to meet the German attempt to stop all 
supplies of every kind from leaving or entering British or French, 
ports by themselves stopping supplies going to or from Germany 
for this end. The British' fleet has instituted a blockade, effectively 
controlling by cruiser " cordon " all passage to and from Germany 
by sea. The* difference between the two policies is, however, that 
while our object is the same as that of Germany, we propose to 
attain it without sacrificing neutral ships or noncombatant lives or 
inflicting upon neutrals the damage that must be entailed when a 
vessel and its cargo are sunk without notice, examination, or trial. 
I must emphasize again that this measure is a natural and necessary 
consequence of the unprecedented methods, repugnant to all law and 
morality, which have been described above, which Germany began 
to adopt at the very outset of the war, and the effects of which have 
been constantly accumulating. 
{Dip. Corr. 64-65.) 

No. 33. British note, March 15, 19 15, replying to the Ameri- 
can inquiry about the restraint on sea-borne commerce with 
Germany (No. 30). 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

1, His Majesty's Government have had under careful considera- 
tion the inquiries which, under instructions from your Government, 
Your Excellency addressed to me on the eighth instant regarding 
the scope and mode of application of the measures, foreshadowed in 
the British and French declarations of the first of March, for re- 
stricting the trade of Germany. Your Excellency explained and 
illustrated by reference to certain contingencies the difficulty of the 
United States Government in adopting a definite attitude toward 
these measures by reason of uncertainty regarding their bearing 
upon the commerce of neutral countries. 

2. I can at once assure Your Excellency that subject to the para- 
mount necessity of restricting German trade His Majesty's Govern- 
ment have made it their first aim to minimize inconvenience to 
neutral commerce. From the accompanying copy of the order in 
council, which is to be published to-day, you will observe that a 
wide discretion is afforded to the prize court in dealing with the 
trade of neutrals in such manner as may in the circumstances be 
deemed just and that full provision is made to facilitate claims by 
persons interested in any goods placed in the custody of the marshal 
of the prize court under the order. I apprehend that the perplexities 
to which Your Excellency refers will for the most part be dissipated 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA (,y 

by the perusal of this document and that it is only necessary for 
me to add certain explanatory observations, 

3. The effect of the order in council is to confer certain powers 
upon the executive officers of His Majesty's Government. The ex- 
tent to which those pov^ers will be actually exercised and the degree 
of seventy with which the measures of blockade authorized will 
be put into operation, are matters which will depend on the admin- 
istrative orders issued by the Government and the decisions of the 
authorities specially charged with the duty of dealing with individual 
ships and cargoes, according to the merits of each case. The United 
States Government may rest assured that the instructions to be 
issued by His Majesty's Government -to the fleet and to the customs 
officials and executive committees concerned will impress upon them 
the duty of acting with the utmost despatch consistent with the 
object in view and of showing in every case such consideration for 
neutrals as may be compatible with that object which is, succinctly 
stated, to establish a blockade to prevent vessels from carrying goods 
for or coming from Germany. 

4. His. Majesty's Government have felt most reluctant at the mo- 
ment of initiating a policy of blockade to exact from neutral ships 
all the penalties attaching to a breach of blockade. In their desire 
to alleviate the burden which the existence of a state of war at sea 
must inevitably impose on neutral sea-borne commerce, they declare 
their intention to refrain altogether from the exercise of the right 
to confiscate ships or cargoes which belligerents have always claimed 
in respect of breaches of blockade. They restrict their claim to the 
stopping of cargoes destined for or coming from the enemy's terri- 
tory. 

5. As regards cotton, full particulars of the arrangements contem- 
plated have alreadv been explained. It will be admitted that every 
possible regard has been had to the legitimate interests of the 
American cotton trade. 

6. Finally, in reply to the penultimate paragraph of Your Excel- 
lency's note, I have the honor to state that it is not intended to 
interfere with neutral vessels carrying enemy cargo of noncontra- 
band nature outside European waters, including the Mediterranean. 

{Dip. Corr. 65.) 

No. 34. British order in council, March 15, 1915, in restraint 
of sea-borne commerce with Germany. 

Whereas the German Government has issued certain orders which, 
in violation of the usages of war, purport to declare the waters sur- 
rounding the United Kingdom a military area, in which all British 
and allied merchant vessels will be destroyed, irrespective of the 
safety of the lives of passengers and crew, and in which neutral 
shipping will be exposed to similar danger in view of the uncer- 
tainties of naval warfare ; and 

Whereas in a memorandum accompanying the said orders neutrals 
are warned against entrusting crews, passengers, or goods to British 
or allied ships; 

Whereas such attempts on the part of the enemy give to His 
Majesty an unquestionable right of retaliation; 

And whereas His Majesty has therefore decided to adopt further 
measures in order to prevent commodities of any kind from reach- 



68 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

ing or leaving Germany, though such measures will be enforced 
without risk to neutral ships or to neutral or noncombatant life and 
in strict observance of the dictates of humanity; 

And whereas the allies of His Majesty are associated with him in 
the steps now to be announced for restricting further the commerce 
of Germany ; 

His Majesty is therefore pleased, by and with the advice of his 
privy council, to order and it is hereby ordered as follows: 

1. No merchant vessels (sic) which sailed from her port of de- 
parture after the first March, 1915, shall be allowed to proceed on her 
voyage to any German port. 

Unless the vessel receives a pass enabling her to proceed to some 
neutral or allied port to be named in the pass, goods on board any 
such vessel must be discharged in a British port and placed in the 
custody of the marshal of the prize court. Goods so discharged, 
not being contraband of war, shall, if not requisitioned for the 
use of His Majesty, be restored by order of the court, upon such 
terms as the court may in the circumstances deem to be just, to the 
person entitled thereto. 

2. No merchant vessel which sailed from any German port after 
the first March, 191 5, shall be allowed to proceed on her voyage 
with any goods on board laden at such port. 

All goods laden at such port must be discharged in a British or 
allied port. Goods so discharged in a British port shall be placed 
in the custody of the marshal of the prize court, and, if not requisi- 
tioned for the use of His Majesty, shall be detained or sold under 
the direction of the prize court. The proceeds of goods so sold 
shall be paid into court and dealt with in such manner as the court 
may in the circumstances deem to be just. 

Provided, that no proceeds of the sale of such goods shall be paid 
out of court until the conclusion of peace, except on the application 
of the proper officer of the Crown, unless it be shown that the goods 
had become neutral property before the issue of this order. 

Provided also, that nothing herein shall prevent the release of 
neutral property laden at such enemy port on the application of the 
proper officer of the Crown. 

3. Every merchant vessel which sailed from her port of departure 
after the first of March, 1915, on her way to a port other than a 
German port, carrying goods with an enemy destination, or which 
are enemy property, may be required to discharge such goods in a 
British or allied port. Any goods so discharged in a British port 
shall be placed in the custody of the marshal of the prize court, and, 
unless they are contraband of war, shall, if not requisitioned for 
the use of His Majesty, be restored by order of the court, upon 
such terms as the court may in the circumstances deem to be just 
to the person entitled thereto. 

Provided, that this article shall not apply in any case falHng within 
articles 2 or 4 of this order. 

4. Every merchant vessel which sailed from a port other than 
a German port after the first of March, 191 5, having on board 
goods which are of enemy origin or are enemy property may be 
required to discharge such goods in a British or allied port. Goods 
so discharged in a British port shall be placed in the custody of the 
marshal of the prize court, and if not requisitioned for the use of 
His Majesty shall be detained or sold under the direction of the 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 69 

prize court. The proceeds of goods so sold shall be paid into court 
and dealt with in such manner as the court may in the circumstances 
deem to be just. 

Provided, that no proceeds of sale of such goods shall be paid 
out of court until the conclusion of peace except on the application 
of the proper officer of the Crown, unless it be shown that the goods 
had become neutral property before the issue of this order. 

Provided also, that nothing herein shall prevent the release of 
neutral property of enemy origin on the application of the proper 
officer of the Crown. 

5. Any person claiming to be interested in, or to have any claim 
in respect of, any goods (not being contraband of war) placed in 
the custody of the marshal of the prize court under this order, or 
in the proceeds of such goods, may forthwith issue a writ in the 
prize court against the proper officer of the Crown and apply for an 
order that the goods should be restored to him, or that their proceeds 
should be paid to him, or for such other order as the circumstances 
of the case may require. 

The practice and procedure of the prize court shall, so far as 
applicable, be followed mutatis mutandis in any proceedings conse- 
quential upon this order. 

6. A merchant vessel which has cleared for a neutral port from 
a British or allied port, or which has been allowed to pass, having 
an ostensible destination to a neutral port, and proceeds to an enemy 
port, shall, if captured on any subsequent voyage, be liable to con- 
demnation. 

7. Nothing in this order shall be deemed to affect the liability of 
any vessel or goods to capture or condemnation independently of 
this order. 

8. Nothing in this order shall prevent the relaxation of the provi- 
sions of this order in respect of the merchant vessels of any country 
which declares that no commerce intended for or originating in Ger- 
many or belonging to Germany (sic) subjects shall enjoy the pro- 
tection of its flag. 

(Dip. Corn 66.) 

No. 35. British order in council, March 23, 191 5, authorizing 
the requisition of neutral ships.* 

Whereas by section 3 of the prize courts act, 1894, His Majesty 
in Council is authorized to make rules of court for regulating, sub- 
ject to the provisions of the naval prize act, 1864, and the said act, 
the procedure and practice of prize courts within the meaning of 
the naval prize act, 1864, and the duties and conduct of the officers 
of the courts and of the practitioners therein, and for regulating the 
fees to be taken by the officers thereof, and the costs, charges, and 
expenses to be allowed to the practitioners therein: 

And whereas in pursuance of the prize courts act, 1894, certain 
rules were made by the order of His Majesty in Council, dated the 
5th day of August, 1914, and amended by the Orders of His Maj- 
esty in Council of the 30th day of September, 1914, and the 28th 
day of November, 1914, respectively, which said rules and amended 
rules were by the said orders in council directed to take effect 
provisionally in accordance with the provisions of section 2 of the 

* Presented by the Solicitor of the Crown in an argument in favor of requisition- 
ing the cargo of foodstuffs on the mihelmina. See Nos. 20 and 25. 



70 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Rules Publication Act, 1893, from the dates of the said Orders in 
Council, respectively: 

And whereas the provisions of section i of the rules publication 
act, 1893, were duly complied with in respect of the said rules and 
amended rules, and the same were finally made by the orders of His 
Majesty in Council, dated, respectively, the 17th day of September, 
1914, the 28th day of November, 1914, and the 3d day of February, 

1915- 

And whereas it is expedient that the said rules and amended rules 
should be further amended. 

And whereas on account of urgency this order should come into 
immediate operation. 

Now, therefore, His Majesty, by virtue of the powers in this 
behalf by the said act or otherwise in him vested, is pleased, by and 
with the advice of his privy council, to order, and it is hereby 
ordered, as follows : 

1. That in Order IX (discovery, inspection, and admission of docu- 
ments and facts) of the said rules: 

In rule i, the words " upon filing an affidavit " shall be omitted. 
In rule i, instead of the words " any other party " there shall 

be substituted the words " any party other than the proper 

officer of the Crown." 

2. That in Order XI (sale, appraisement, safe custody, and inspec- 
tion of prize) of the said rules, in rule i, the following words shall 
be omitted : " on account of the condition of a ship, or on application 
of a claimant, and on or after condemnation." 

3. That in Order XV (evidence and hearing) of the said rules, the 
following rule shall be added : 

"21. Notwithstanding anything contained in these rules the proper 
officer of the Crown may apply to the judge for leave to administer 
interrogatories for the examination of any person whether a party 
to the cause or not." 

4. That Order XXIX (requisition by admiralty) of the said rules, 
as amended by His Majesty's Order in Council dated the 28th day 
of November, 1914, shall be, and the same is hereby, revoked, and in 
lieu thereof the following order shall have effect: 

"order XXIX — REQUISITION 

" I. Where it is made to appear to the judge on the application 
of the proper officer of the Crown that it is desired to requisition 
on behalf of His Majesty a ship in respect of which no final decree 
of condemnation has been made, he shall order that the ship shall 
be appraised, and that upon an undertaking being given in accordance 
with rule 5 of this order, the ship shall be released and delivered 
to the Crown, 

" 2. Where a decree for the detention of a ship has been made 
in accordance with Order XXVIII, the proper officer of the Crown 
may file a notice (Appendix A, Form No. 55) that the Crown 
desires to requisition the same, and thereupon a commission (Appen- 
dix A, Form No. 56) to the marshal directing him to appraise the 
ship shall issue. Upon an undertaking being given in accordance 
with rule 5 of this order the ship shall be released, and delivered 
to the Crown, Service of thi§ notice shall not be required before 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 71 

filing, but copies thereof shall be served upon the parties by the 
proper officer of the Crown as soon thereafter as possible. 

"3. Where in any case of requisition under this order it is made 
to appear to the judge on behalf of the Crown that the ship is 
required for the service of His Majesty forthwith, the judge may 
order the same to be forthwith released and delivered to the Crown 
without appraisement, 

"4. In any case where a ship has been requisitioned under the 
provisions of this order and whether or not an appraisement has 
been made, the court may, on the application of any party, fix the 
amount to be paid by the Crown in respect of the value of the ship. 

" 5. In every case of requisition under this order an undertaking in 
writing shall be filed by the proper officer of the Crown for payment 
into court on behalf of the Crown of the appraised value of the ship, 
or of the amount fixed under Rule 4 of this order, as the case may be, 
at such time or times as the court shall declare by order that the same 
or any part thereof is required for the purpose of payment out of 
court. 

" 6. Where in any case of requisition under this order it is made 
to appear to the judge on behalf of the Crown that the Crown 
desires to requisition the ship temporarily, the court may, in lieu 
of an order of release, make an order for the temporary delivery 
of the ship to the Crown, and subject as aforesaid the provisions 
of this order shall apply to such a requisition ; provided that, in the 
event of the return of the ship to the custody of the court, the 
court may make such order as it thinks fit for the release of the 
undertaking given on behalf of the Crown or the reduction of the 
amount undertaken to be paid thereby, as the case may be; and 
provided also that, where the ship so requisitioned is subject to the 
provisions of Order XXVIII, rule i, relating to detention, the 
amount for which the Crown shall be considered liable in respect 
of such requisition shall be the amount of the damage, if any, which 
the ship has suffered by reason of such temporary delivery as afore- 
said. 

" 7. The proceedings in respect of a ship requisitioned under this 
order shall continue notwithstanding the requisition. 

'' 8. In any case of requisition of a ship in respect of which no 
cause has been instituted, any person interested in such ship may, 
without issuing a writ, provided he does not intend to make a claim 
for restitution or damages, apply by summons for an order that the 
amount to be paid in respect of such ship be fixed by the court, and 
the judge may, on the hearing of such summons, order the ship to 
be appraised or to be valued, or give such other directions for fixing 
the amount as he may think fit." 

5. That in Form 4 in Appendix A to the said rules there shall be 
omitted the words " commander of our ship of war " and the words 
" taken and seized as prize l)y our said ship of w^ar." 

6. This order shall take effect provisionally in accordance with the 
provisions of Section 2 of the rules publication act, 1893, from the 
date hereof. 

(Dip. Corr. 72-/3.) 



j2 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

No. 36. American note, March 30, 1915, regarding British 
violation of neutral rights. 

The Secretary of State to the American Ambassador at London. 

You are instructed to deliver the following to His Majesty's Gov- 
ernment in reply to your numbers 1795 and 1798 of March 15: 

The Government of the United States has given careful considera- 
tion to the subjects treated in the British notes of March 13 and 
March 15, and to the British Order in Council of the latter date. 

These communications contain matters of grave importance to 
neutral nations. They appear to menace their rights of trade and 
intercourse not only with belligerents but also with one another. 
They call for frank comment in order that misunderstandings may 
be avoided. The Government of the United States deems it its 
duty, therefore, speaking in the sincerest spirit of friendship, to 
m,ake its own view and position with regard to them unmistakably 
clear. 

The Order in Council of the 15th of March would constitute, 
were its provisions to be actually carried into effect as they stand, 
a practical assertion of unlimited belligerent rights over neutral 
commerce within the whole European area, and an almost unqualified 
denial of the sovereign rights of the nations now at peace. 

This Government takes it for granted that there can be no ques- 
tion what those rights are. A nation's sovereignty over its own 
ships and citizens under its own flag on the high seas in time of 
peace is, of course, unlimited; and that sovereignty suffers no 
diminution in time of war, except in so far as the practice and con- 
sent of civilized nations has limited it by the recognition of certain 
now clearly determined rights, which it is conceded may be exer- 
cised by nations which are at war. 

A belligerent nation has been conceded the right of visit and 
search, and the right of capture and condemnation, if upon examina- 
tion a neutral vessel is found to be engaged in unneutral service or 
to be carrying contraband of war intended for the enemy's govern- 
ment or armed forces. It has been conceded the right to establish 
and maintain a blockade of an enemy's ports and coasts and to 
capture and condemn any vessel taken in trying to break the blockade. 
It is even conceded the right to detain and take to its own ports 
for judicial examination all vessels which it suspects for substantial 
reasons to be engaged in unneutral or contraband service and to 
condemn them if the suspicion is sustained. But such rights, long 
clearly defined both in doctrine and practice, have hitherto been 
held to be the only permissible exceptions to the principle of uni- 
versal equality of sovereignty on the high seas as between belligerents 
and nations not engaged in war. 

It is confidently assumed that His Majesty's Government will not 
deny that it is a rule sanctioned by general practice that, even 
though a blockade should exist and the doctrine of contraband as 
to unblockaded territory be rigidly enforced, innocent shipments 
may be freely transported to and from the United States through 
neutral countries to belligerent territory without being subject to 
the penalties of contraband traffic or breach of blockade, much less to 
detention, requisition, or confiscation. 

Moreover the rules of the Declaration of Paris of 1856 — among 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 73 

them that free ships make free goods — will hardly at this day be 
disputed by the signatories of that solemn agreement. 

His Majesty's Government, like the Government of the United 
States, have often and explicitly held that these rights represent 
the best usage of warfare in the dealings of belligerents with neutrals 
at sea. In this connection I desire to direct attention to the opinion 
of the Chief Justice of the United States in the case of the Pctcrhof, 
which arose out of the Civil War, and to the tact that that opinion 
was unanimously sustained in the award of the Arbitration Commis- 
sion of 1 87 1, to which the case was presented at the request of 
Great Britain. From that time to the Declaration of London of 
1909, adopted with modifications by the Order in Council of the 
23d of October last, these rights have not been seriously questioned 
by the British Government. And no claim on the part of Great 
Britain of any justification for interfering with these clear rights 
of the United States and its citizens as neutrals could be admitted. 
To admit it would be to assume an attitude of unneutrality toward 
the present enemies of Great Britain which would be obviously in- 
consistent with the solemn obligations of this Government in the 
present circumstances; and for Great Britain to make such a claim 
would be for her to abandon and set at naught the principles for 
which she has consistently and earnestly contended in other times 
and circumstances. 

The note of His Majesty's Principal Secretary of State for For- 
eign Affairs which accompanies the Order in Council, and which 
bears the same date, notifies the Government oi the United States 
of the establishment of a blockade which is, if defined by the terms 
of the Order in Council, to include all the coasts and ports of Ger- 
many and every port of possible access to enemy territory. But the 
novel and quite unprecedented feature of that blockade, if we are to 
assume it to be properly so defined, is that it embraces many neutral 
ports and coasts, bars access to them, and subjects all neutral ships 
seeking to approach them to the same suspicion that would attach 
to them were they bound for the ports of the enemies of Great 
Britain, and to unusual risks and penalties. 

It is manifest that such limitations, risks, and liabilities placed 
upon the ships of a neutral power on the high seas, beyond the right 
of visit and search and the right to prevent the shipment of con- 
traband already referred to, are a distinct invasion of the sovereign 
rights of the nation whose ships, trade, or commerce is interfered 
with. 

The Government of the United States is, of course, not oblivious 
to the great changes which have occurred in the conditions and 
means of naval warfare since the rules hitherto governing legal 
blockade were formulated. It might be ready to admit that the old 
form of " close " blockade with its cordon of ships in the immediate 
offing of the blockaded ports is no longer practicable in face of an 
enemy possessing the means and opportunity to make an effective 
defense by the use of submarines, mines, and air craft ; but it can 
hardly be maintained that, whatever form of effective blockade may 
be made use of, it is impossible to conform at least to the spirit and 
principles of the established rules of war. If the necessities of the 
case should seem to rinder it imperative that the cordon of block- 
ading vessels be extended across the approaches to any neighboring 
neutral port or country, it would seem clear that it would still be 



74 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

easily practicable to comply with the well-recognized and reasonable 
prohibition of international law against the blockading of neutral 
ports by according free admission and exit to all lawful traffic with 
neutral ports through the blockading cordon. This traffic would of 
course include all outward-bound traffic from the neutral country 
and all inward-bound traffic to the neutral country except contraband 
in transit to the enemy. Such procedure need not conflict in any 
respect with the rights of the belligerent maintaining the blockade 
since the right would remain with the blockading vessels to visit and 
search all ships either entering or leaving the neutral territory which 
they were in fact, but not of right, investing. 

The Government of the United States notes that in the Order in 
Council His Majesty's Government give as their reason for entering 
upon a course of action, which they are aware is without precedent 
in modern warfare, the necessity they conceive themselves to have 
been placed under to retaliate upon their enemies for measures 
of a similar nature which the latter have announced it their intention 
to adopt and which they have to some extent adopted; but the Gov- 
ernment of the United States, recalling the principles upon which 
His Majesty's Government have hitherto been scrupulous to act, 
interprets this as merely a reason for certain extraordinary activities 
on the part of His Majesty's naval forces and not as an excuse for 
or prelude to any unlawful action. If the course pursued by the 
present enemies of Great Britain should prove to be in fact tainted 
by illegality and disregard of the principles of war sanctioned by 
enlightened nations, it cannot be supposed, and this Government does 
not for a moment suppose, that His Majesty's Government would 
wish the same taint to attach to their own actions or would cite such 
illegal acts as in any sense or degree a justification for similar prac- 
tices on their part in so far as they affect neutral rights. 

It is thus that the Government of the United States interprets the 
language of the note of His Majesty's Principal Secretary of State 
for Foreign Affairs which accompanies the copy of the Order in 
Council winch was handed to the Ambassador of the United States 
near the Government in London and by him transmitted to Wash- 
ington. 

This Government notes with gratification that " wide discretion 
is afforded to the prize court in dealing with the trade of neutrals 
in such manner as may in the circumstances be deemed just, and 
that full provision is made to facilitate claims by persons interested 
in any goods placed in the custody of the marshal of the prize court 
under the order " ; that " the effect of the Order in Council is to 
confer certain powers upon the executive officers of His Majesty's 
Government " ; and that " the extent to which these powers will be 
actually exercised and the degree of severity with which the measures 
of blockade authorized will be put into operation are matters which 
will depend on the administrative orders issued by the Government 
and the decisions of the authorities especially charged with the duty 
of dealing with individual ships and cargoes according to the merits 
of each case." This Government further notes with equal satisfac- 
tion the declaration of the British Government that " the instructions 
to be issued by His Majesty's Government to the fleet and to the 
customs officials and executive committees concerned will impress 
upon them the duty of acting with the utmost despatch consistent 
with the object in view, and of showing in every case such con- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 75 

sideration for neutrals as may be compatible with that object, which 
IS, succinctly stated, to establish a blockade to prevent vessels from 
carrying goods for or coming from Germany." 

In view of these assurances formally given to this Government, it 
is confidently expected that the extensive powers conferred by the 
Order in Council on the executive officers of the Crown will be re- 
stricted by " orders issued by the Government " directing the exer- 
cise of their discretionary powers in such a manner as to modify 
ni practical application those provisions of the Order in Council 
which, if strictly enforced, would violate neutral rights and interrupt 
legitimate trade. Relying on the faithful performance of these vol- 
untary assurances by His Majesty's Government the United States 
takes it for granted that the approach of American merchantmen to 
neutral ports situated upon the long line of coast affected by the 
Order in Council will not be interfered with when it is known that 
they do not carry goods which are contraband of war or goods 
destined to or proceeding from ports within the belligerent territory 
affected. 

The Government of the United States assumes with the greater 
confidence that His Majesty's Government will thus adjust their 
practice to the recognized rules of international law, because it is 
manifest that the British Government have adopted an extraordinary 
method of "stopping cargoes destined for or coming from the 
enemy's territory," which, owing to the existence of unusual condi- 
tions in modern warfare at sea, it will be difficult to restrict to the 
limits which have been heretofore required by the law of nations. 
Though the area of operations is confined to " European waters 
including the Mediterranean," so great an area of the high seas 
is covered and the cordon of ships is so distant from the territory 
affected that neutral vessels must necessarily pass through the block- 
ading force in order to reach important neutral ports which Great 
Britain as a belligerent has not the legal right to blockade and which, 
therefore, it is presumed she has no intention of claiming to blockade. 
The Scandinavian and Danish ports, for example, are open to Amer- 
ican trade. They are also free, so far as the actual enforcement of 
the Order in Council is concerned, to carry on trade with German 
Baltic ports although it is an essential element of blockade that it 
bear with equal severity upon all neutrals. 

This Government, therefore, infers that the commanders of His 
Majesty's ships of war engaged in maintaining the so-called blockade 
will be instructed to avoid an enforcement of the proposed measures 
of nonintercourse in such a way as to impose restrictions upon 
neutral trade more burdensome than those which have been re- 
garded as inevitable when the ports of a belligerent are actually 
blockaded by the ships of its enemy. 

The possibilities of serious interruption of American^ trade under 
the Order in Council are so many, and the methods proposed are 
so unusual and seem liable to constitute so great an impediment and 
embarrassment to neutral commerce that the Government of the 
United States, if the Order in Council is strictly enforced, appre- 
hends many interferences with its legitimate trade which will impose 
upon His Majesty's (Government heavy responsibilities for acts of 
the British authorities clearly subversive of the rights of neutral 
nations on the high seas. It is, therefore, expected that His Maj- 
esty's Government, having considered these possibilities, will take 



76 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

the steps necessary to avoid them, and, in the event that they should 
unhappily occur, will be prepared to make full reparation for every 
act which under the rules of international law constitutes a violation 
of neutral rights. 

As stated in its communication of October 22, 1914, " this Govern- 
ment will insist that the rights and duties of the United States and 
its citizens in the present war be defined by the existing rules of 
international law and the treaties of the United States, irrespective 
of the provisions of the Declaration of London, and that this Gov- 
ernment reserves to itself the right to enter a protest or demand 
in each case in which those rights and duties so defined are violated 
or their free exercise interfered with, by the authorities of the 
British Government," 

In conclusion you will reiterate to His Majesty's Government that 
this statement of the views of the Government of the United States 
is made in the most friendly spirit, and in accordance with the uni- 
form candor which has characterized the relations of the two Gov- 
ernments in the past, and which has been in large measure the 
foundation of the peace and amity existing between the two nations 
without interruption for a century. 

Bryan. 
{Dip. Con. dp-/ 2.) 

No. 37. First American note, March 31, 1915, in regard to 
the " William P. Frye." 

TJie Secretary of State to the American Ambassador at Berlin. 

You are instructed to present the following note to the German 
Foreign Office : 

Under instructions from my Government I have the honor to 
present a claim for $228,059.54, with interest from January 28, 191 5, 
against the German Government on behalf of the owners and captain 
of the American sailing vessel William P. Frye for damages suffered 
by them on account of the destruction of that vessel on the high 
seas by the German armed cruiser Prins Eitel Friedrich, on January 
28, 1915. 

The facts upon which this claim arises and by reason of which 
the German Government is held responsible by the Government of 
the United States for the attendant loss and damages are briefly 
as follows : 

The William P. Frye, a steel sailing vessel of 3,374 tons gross 
tonnage, owned by American citizens and sailing under the United 
States flag and register, cleared from Seattle, Wash., November 4, 
1914, under charter to M. H. Houser, of Portland, Oreg., bound for 
Queenstown, Falmouth, or Plymouth for orders, with a cargo con- 
sisting solely of 186,950 bushels of wheat owned by the aforesaid 
Houser and consigned " unto order or to its assigns," all of which 
appears from the ship's papers which were taken from the vessel at 
the time of her destruction by the commander of the German cruiser. 

On January 27, 191 5, the Prinz Eitel Friedrich encountered the 
Frye on the high seas, compelled her to stop, and sent on board an 
armed boarding party, who took possession. After an examination 
of the ship's papers the commander of the cruiser directed that the 
cargo be thrown overboard, but subsequently decided to destroy the 
vessel, and on the following morning, by his order, the Frye was 
sunk. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA ^'j 

The claim of the owners and captain consists of the following 
items : 

Value of ship, equipment, and outfit $150,000.00 

Actual freight as per freight list, 5034 1000/2240 

tons at 32-6 — £8180-19-6 at $4.86 39759-54 

Traveling and other expenses of Capt. Kiehne and 
Arthur Sewall & Co., agents of ship, in connec- 
tion with making affidavits, preparing and fil- 
ing claim 500.00 

Personal effects of Capt. H. H. Kiehne 300.00 

Damages covering loss due to deprivation of use 

of ship 37,500.00 

Total $228,059.54 

By direction of my Government, I have the honor to request that 
full reparation be made by the German Government for the destruc- 
tion of the William P. Frye by the German cruiser Prinz Eitcl 
Friedrich. 

Bryan. 
(Dip. Corr. 87.) 

No. 38. German memorandum, April 4, 191 5, concerning the 
British restraint of sea-borne commerce with Germany and 
the American exportation of war material. 

The German Ambassador to the Secretary of State. 

The various British Orders in Council have one-sidedly modified 
the generally recognized principles of international law in a way 
which arbitrarily stops the commerce of neutral nations with Ger- 
many. Even before the last British Order in Council, the shipment 
of conditional contraband, especially food supplies, to Germany was 
practically impossible. Prior to the protest sent by the American 
to the British Government on December 28 last, such a shipment 
did not actually take place in a single case. Even after this protest 
the Imperial Embassy knows of only a single case in which an 
American shipper has ventured to make such a shipment for the 
purpose of legitimate sale to Germany. Both ship and cargo were 
immediately seized by the English and are being held in an English 
port under the pretext of an order of the German Federal Council 
(Bundesrat) regarding the grain trade, although this resolution of 
the Federal Council relates exclusively to grain and flour, and not 
to other foodstuffs, besides making an express exception with respect 
to imported foodstuffs, and although the German Government gave 
the American Government an assurance, and proposed a special 
organization whereby the exclusive consumption by the civilian pop- 
ulation is absolutely guaranteed. 

Under the circumstances the seizure of the American ship was 
inadmissible according to recognized principles of international law. 
Nevertheless the United States Government has not to date secured 
the release of the ship and cargo, and has not, after a duration of 
the war of eight monfhs, succeeded in protecting its lawful trade with 
Germany. 

Such a long delay, especially in matters of food supply, is equiva- 
lent to an entire denial. 



78 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

The Imperial Embassy must therefore assume that the United 
States Government acquiesces in the violations of international law 
by Great Britain. 

Then there is also the attitude of the United States in the question 
of the exportation of arms. The Imperial Government feels sure 
that the United States Government will agree that in questions of 
neutrality it is necessary to take into consideration not only the 
formal aspect of the case, but also the spirit in which the neutrality 
is carried out. 

The situation in the present war differs from that of any previous 
war. Therefore any reference to arms furnished by Germany in 
former wars is not justified, for then it was not a question zvJicthcr 
war material should be supplied to the belligerents, but zvho should 
supply it in competition with other nations. In the present war all 
nations having a war material industry worth mentioning are either 
involved in the war themselves or are engaged in perfecting their 
own armaments, and have therefore laid an embargo against the 
exportation of war material. The United States is accordingly the 
only neutral country in a position to furnish war materials. The 
conception of neutrality is thereby given a new purport, independ- 
ently of the formal question of hitherto existing law. In contradic- 
tion thereto, the United States is building up a powerful arms 
industry in the broadest sense, the existing plants not only being 
worked but enlarged by all available means, and new ones built. 
The international conventions for the protection of the rights of 
neutral nations doubtless sprang from the necessity of protecting 
the existing industries of neutral nations as far as possible from 
injury in tlieir business. But it can in no event be in accordance 
with the spirit of true neutrality if, under the protection of such 
international stipulations, an entirely new industry is created in a 
neutral state, such as is the development of the arms industry in the 
United States, the business whereof, under the present conditions, 
can benefit only the belligerent powers. 

This industry is actually delivering goods only to the enemies of 
Germany. The theoretical willingness to supply Germany also if 
shipments thither were possil)le, does not alter the case. If it is the 
will of the American people that there shall be a true neutrality, the 
United States will find means of preventing this one-sided supply 
of arms or at least of utilizing it to protect legitimate trade with 
Germany, especially that in foodstuffs. This view of neutrality 
should all the more appeal to the United States Government because 
the latter enacted a similar policy toward Mexico. On February 4, 
1914, President Wilson, according to a statement of a Representative 
in Congress in the Committee for Foreign Affairs of December 30, 
1914, upon the lifting of the embargo on arms to Mexico, declared 
that " we should stand for genuine neutrality, considering the sur- 
rounding facts of the case. . . ." He then held that " in that case, 
because Carranza had no ports, while Huerta had them and was 
able to import these materials, that it was our duty as a nation to 
treat (Carranza and Huerta) upon an equality if we wished to 
observe the true spirit of neutrality as compared with a mere paper 
neutrality." , 

If this view were applied to the present case, it would lead to an 
embargo on the exportation of arms. 
(Dip. Con: 73-74.) 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 79 

No. 39. First German note, April 5, 1915, in regard to the 
" William P. Frye." * 

The Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to make reply to the note of his 
Excellency, Mr. James W. Gerard, Ambassador, the United States 
America, dated the 3d instant, foreign office No. 2892, relative to 
claims for damages for the sinking of the American merchant vessel 
William P. Frye by the German auxiliary cruiser Prins Eitel Fried- 
rich. 

According to the reports which have reached the German Govern- 
ment the commander of the Prinz Eitel Fricdrich stopped the Williani 
P. Frye on the high seas January 27, 1915, and searched her. He 
found on board a cargo of wheat consigned to Queenstown, Falmouth, 
or Plymouth to order. After he had first tried to remove the cargo 
from the William P. Frye he took the ship's papers and her crew on 
board and sank ship. 

It results from these facts that the German commander acted 
quite in accordance with the principles of international law as laid 
down in the Declaration of London and the German prize ordinance. 
The ports of Queenstown, Falmouth, and Plymouth, whither the -ship 
visited was bound, are strongly fortified English coast places, which, 
moreover, serve as bases for the British naval forces. The cargo of 
wheat being food or foodstuffs, was conditional contraband within 
the meaning of article 24, No. i, of the Declaration of London, and 
article 2t„ No. i, of the German prize ordinance, and was therefore 
to be considered as destined for the armed forces of the enemy, 
pursuant to articles 33 and 34 of the Declaration of London and 
articles 32 and 33 of the German prize ordinance, and to be treated 
as contraband pending proof of the contrary. This proof was cer- 
tainly not capable of being adduced at the time of the visiting of 
the vessel, since the cargo papers read to order. This, however, 
furnished the conditions under which, pursuant to article 49 of the 
Declaration of London and article 113 of the German prize ordinance 
the sinking of the ship was permissible, since it was not possible 
for the auxiliary cruiser to take the prize into a German port with- 
out involving danger to its cwn security or the success of its opera- 
tions. The duties devolving upon the cruiser before destruction of 
the ship, pursuant to article 50 of the Declaration of London and 
article 116 of the German prize ordinance, were fulfilled by the 
cruiser in that it took on board all the persons found on the sailing 
vessel, as well as the ship's papers. 

The legality of the measures taken by the German commander is 
furthermore subject to examination by the German prize court pur- 
suant to article 51 of the Declaration of London and section i, No. 2, 
of the German ^Code of Prize Procedure. These prize proceedings 
will be instituted before the prize court at Hamburg as soon as the 
ship's papers are received and will comprise the settlement of ques- 
tions whether the destruction of the cargo and the ship was necessary 
within the meaning of article 49 of the Declaration of London; 
whether the property sunk was liable to capture ; and whether, or to 
what extent, indemnity is to be awarded the owners. In the trial 
the owners of shii> and cargo would be at liberty, pursuant to article 
34, paragraph 3, of the Declaration of London, to adduce proof that 

* See No. 37, 



So THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

the cargo of wheat had an innocent destination and did not, there- 
fore, have the character of contraband. If such proof is not adduced, 
the German Government would not be Hable for any compensation 
whatever, according to the general principles of international law. 

However, the legal situation is somewhat different in the light of 
the special stipulations applicable to the relations between Germany 
and the United States since article 13 of the Prussian-American 
treaty of friendship and commerce of July 11, 1799, taken in con- 
nection with article 12 of Prussian-American treaty of commerce and 
navigation of May i, 1828, provides that contraband belonging to 
the subjects or citizens of either party cannot be confiscated by 
the other in any case but only detained or used in consideration of 
payment of the full value of the same. On the ground of this treaty 
stipulation which is as a matter of course binding on the German 
prize court the American owners of ship and cargo would receive 
compensation even if the court should declare the cargo of wheat 
to be contraband. Nevertheless the approaching prize proceedings 
are not rendered superfluous since the competent prize court must 
examine into the legality of the capture and destruction and also 
pronounce upon the standing of the claimants and the amount of 
indemnity. 

The undersigned begs to suggest that the ambassador bring the 
above to the knowledge of his Government and avails himself, etc. 

(Signed) Jagow. 

{Dip. Corn 87-88.) 

No. 40. British memorandum, April 8, 191 5, in reference to 
the '* Wilhelmina." * 

The Prime Minister to the American Ambassador. 

His Majesty's Government share the desire of the United States 
Government for an immediate settlement of the case of the Wilhel- 
mina. This American ship laden with foodstuffs left New York 
for Hamburg on January 22nd. She called at Falmouth of .her 
own accord on February 9th and her cargo was detained as prize 
on February nth. The writ instituting prize court proceedings was 
issued on February 27th, and claimed that the cargo should be con- 
demned as contraband of war. No proceedings were taken or even 
threatened against the ship herself, and in the ordinary course the 
cargo would have been unloaded when seized so that the ship would 
be free to leave. The owners of the cargo, however, have through- 
out objected to the discharge of the cargo and it is because of this 
objection that the ship is still at Falmouth with the cargo on board. 

His Majesty's Government have formally undertaken that even 
should the condemnation of the cargo as contraband be secured in 
the prize court they would none the less compensate the owners for 
any loss sustained in consequence of the ship having been stopped 
and proceedings taken against the cargo. 

It was understood at the time that the proceedings in the prize 
court would be in the nature of a test case, the decision in which 
would govern the treatment of any subsequent shipments of food 
supplies to Germany in similar circumstances. Since then the situa- 
tion has, however, materially changed by the issue of the Order in 
Council of March 11, 191 5, and the measures taken thereunder which 

* See Nos. 20 and 25. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 8i 

prevent further supplies being sent from America to Germany, 
whether contraband or not. 

In these circumstances there is no longer an object in con- 
tinuing the judicial proceedings in the case of the IVillichnina; for 
it can no longer serve as a test case, and it is really agreed that the 
owners of the cargo, even if proved to have no clann, are to be 
treated as if their claim was good. Nothing therefore remains but 
to settle the claim on proper and just conditions, and this would, in 
the opinion of His Majesty's Government, be secured most expedi- 
tiously and with the least inconvenience to all parties by an agree- 
ment between the Crown and the claimants for the disposal of the 
whole matter. His Majesty's Government accordingly propose^ that 
such an agreement be arrived at on the following terms: "His 
Majesty's Government having undertaken to compensate the claim- 
ants by paying for the cargo seized on the basis of the loss of the 
profit the claimants would have made if the ship had proceeded m 
due course to Hamburg, and by indemnifying them for the delay 
caused to the ship so far as this delay has been due to the action of 
the British authorities, all proceedings in the prize court shall be 
stayed, on the understanding that His Majesty's Government buy 
the cargo from the claimants on the above terms. The cargo shall 
be discharged and delivered to the proper officer of the Crown forth- 
with The sum to be paid shall be assessed by a single referee nom- 
inated jointly by the ambassador of the United States of Anierica 
and His Majesty's principal secretary of state for foreign affairs, 
who shall certify the total amount after making such inquiries as 
he may think fit, but without formal hearing or arbitration. His 
Majesty's Government would be grateful if the United States am- 
bassador would inform the claimants of the above proposal at his 
early convenience and obtain their acceptance. 
{Dip. Corr. 83-84.) 

No. 41. American note, April 21, 1915, replying to No. 38- 

The Secretary of State to the German Ambassador. 

Excellency- I have given thoughtful consideration to Your Ex- 
cellency's note of the 4th of April, I9i5< enclosing a memorandum 
of the same date, in which Your Excellency discusses the action 
of this Government with regard to trade between the United States 
and Germany and the attitude of this Government with regard to the 
exportation of arms from the United States to the nations now at war 

"^l^m^s^admit that I am somewhat at a loss how to interpret Your 
Excellency's treatment of these matters. There are many circum- 
stances connected with these important subjects to -which I would 
have expected Your Excellency to advert, but ^f whiclyou make 
no mention, and there are other circumstances to which you do refer 
w^iich I would have supposed to be hardly appropriate for discussion 
between The Government of the United States and the Government 

""^^sSriYke the liberty, therefore, of regarding Your Excellency's 
references to the course pursued by the Government of he United 
States with regarcf to interferences with trade from this country 
Id' asThe Gov^ernment of Great Britain have attempted, as in ended 
merely to illustrate more fully the situation to which you desire to 



82 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

call our attention and not as an invitation to discuss that course. 
Your Excellency's long experience in international affairs will have 
suggested to you that the relations of the two Governments with 
one another cannot wisely be made a subject of discussion with a 
third Government, which cannot be fully informed as to the facts 
and which cannot be fully cognizant of the reasons for the course 
pursued. I believe, however, that I am justified in assuming that 
what you desire to call forth is a frank statement of the position 
of this Government in regard to its obligations as a neutral power. 
The general attitude and course of policy of this Government in the 
maintenance of its neutrality I am particularly anxious that Your 
Excellency should see in their true light. I had hoped that this 
Government's position in these respects had been made abundantly 
clear, but I am of course perfectly willing to state it again. This 
seems to me the more necessary and desirable because, I regret to 
say, the language which Your Excellency employs in your mem- 
orandum is susceptible of being construed as impugning the good 
faith of the United States in the performance of its duties as a 
neutral. I take it for granted that no such implication was intended, 
but it is so evident that Your Excellency is laboring under certain 
false impressions that I cannot be too explicit in setting forth the 
facts as they are, when fully reviewed and comprehended. 

In the first place, this Government has at no time and in no man- 
ner yielded any one of its rights as a neutral to any of the present 
belligerents. It has acknowledged, as a matter of course, the right 
of visit and search and the right to apply the rules of contraband 
of war to articles of commerce. It has, indeed, insisted upon the 
use of visit and search as an absolutely necessary safeguard against 
mistaking neutral vessels for vessels owned by an enemy and 
against mistaking legal cargoes for illegal. It has admitted also the 
right of blockade if actually exercised and effectively maintained. 
These are merely the well-known limitations which war places upon 
neutral commerce on the high seas. But nothing beyond these has 
it conceded. I call Your Excellency's attention to this, notwithstand- 
ing it is already known to all the world as a consequence of the 
publication of our correspondence in regard to these matters with 
several of the belligerent nations, because I cannot assume that you 
have official cognizance of it. 

In the second place, this Government attempted to secure from the 
German and British Governments mutual concessions with regard 
to the measures those Governments respectively adopted for the in- 
terruption of trade on the high seafs. This it did, not of right, but 
merely as exercising the privileges of a sincere friend of both parties 
and as indicating its impartial good will. The attempt was unsuc- 
cessful ; but I regret that Your Excellency did not deem it worthy 
of mention in modification of the impressions you expressed. We 
had hoped that this act on our part had shown our spirit in these 
times of distressing war as our diplomatic correspondence had shown 
our steadfast refusal to acknowledge the right of any belligerent to 
alter the accepted rules of war at sea in so far as they affect the 
rights and interests of neutrals. 

In the third place, I note with sincere regret that, in discussing 
the sale and exportation of arms by citizens of the United States 
to the enemies of Germany, Your Excellency seems to be under 
the impression that it was within the choice of the Government of 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 83 

the United States, notwithstanding its professed neutrality and its 
diHgent ell'orts to maintain it in other particulars, to inhibit this 
trade, and that its failure to do so manifested an unfair attitude 
toward Germany. This Government holds, as I believe Your Excel- 
lency is aware, and as it is constrained to hold in view of the present 
indisputable doctrines of accepted international law, that any change 
in its own laws of neutrality during the progress of a war which 
would affect unequally the relations of the United States with the 
nations at war would be an unjustifiable departure from the prin- 
ciple of strict neutrality by which it has consistently sought to direct 
its actions, and I respectfully submit that none of the circumstances 
urged in Your Excellency's memorandum alters the principle in- 
volved. The placing of an embargo on the trade in arms at the 
present time would constitute such a change and be a direct violation 
of the neutrality of the United States. It will, I feel assured, be 
clear to Your Excellency that, holding this view and considering 
itself in honor bound by it, it is out of the question for this Gov- 
ernment to consider such a course. 

I hope that Your Excellency will realize the spirit in which I am 
drafting this reply. The friendship between the people of the United 
States and the people of Germany is so warm and of such long 
standing, the ties which bind them to one another in amity are so 
many and so strong, that this Government feels under a special 
compulsion to speak with perfect frankness when any occasion arises 
which seems likely to create any misunderstanding, however slight 
or temporary, between those who represent the Governments of the 
two countries. It will be a matter of gratification to me if I have 
removed from Your Excellency's mind any misapprehension you may 
have been under regarding either the policy or the spirit and pur- 
poses of the Government of the United States. Its neutrality is 
founded upon the firm basis of conscience and good will. 

Accept, etc., 

W. J. Bryan. 
(Dip. Corr. 74-75-) 

No. 42. Announcement of the German Embassy, April 22, 
1915, warning against embarkation on vessels belonging to 
Great Britain or its allies. 

NOTICE! 
Travellers intending to embark on the Atlantic voyage are re- 
minded that a state of war exists between Germany and her allies 
and Great Britain and her allies; that the zone of war includes the 
waters adjacent to the British Isles; that, in accordance w^ith formal 
notice given by the Imperial German Government, vessels flying the 
flag of Great Britain, or of any of her allies, are liable to destruc- 
tion in those waters and that travellers sailing in the war zone on 
ships of Great Britain or her allies do so at their own risk. 

Imperial German Embassy. 
Washington, D. C, April 22nd, 1915. 

{The New York Times, May 8, 1915.) 



84 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

No. 43. Second American note, April 28, 191 5, in regard to 
the " William P. Frye." * 

The Secretary of State to the American Ambassador at Berlin. 

You are instructed to present the following note to the German 
Foreign Office: 

In reply to Your Excellency's note of the 5th instant, which the 
Government of the United States understands admits the liability 
of the Imperial German Government for the damages resulting from 
the sinking of the American sailing vessel William P. Frye by the 
German auxiliary cruiser Prinz Eitel Friedrich on January 28 last, 
I have the honor to say, by direction of my Government, that while 
the promptness with which the Imperial German Government has 
admitted its liability is highly appreciated, my Government feels that 
it would be inappropriate in the circumstances of this case, and 
would involve unnecessary delay to adopt the suggestion in your 
note that the legality of the capture and destruction, the standing 
of the claimants, and the amount of indemnity should be submitted 
to a prize court. 

Unquestionably the destruction of this vessel was a violation of 
the obligations imposed upon the Imperial German Government un- 
der existing treaty stipulations between the United States and Prussia, 
and the United States Government, by virtue of its treaty rights, 
has presented to the Imperial German Government a claim for in- 
demnity on account of the resulting damages suffered by American 
citizens. The liability of the Imperial German Government and the 
standing of the claimants as American citizens and the amount of 
indemnity are all questions which lend themselves to diplomatic 
negotiation between the two Governments, and happily the question 
of liability has already been settled in that way. The status of the 
claimants and the amount of the indemnity are the only questions 
remaining to be settled, and it is appropriate that they should be dealt 
with in the same way. 

The Government of the United States fully understands that, as 
stated in Your Excellency's note, the German Government is liable 
under the treaty provisions above mentioned for the damages arising 
from the destruction of the cargo as well as from the destruction of 
the vessel. But it will be observed that the claim under discussion 
does not include damages for the destruction of the cargo, and the 
question of the value of the careo therefore is not involved in the 
present discussion. 

The Government of the United States recognizes that the German 
Government will wish to be satisfied as to the American ownership 
of the vessel, and the amount of the damages sustained in conse- 
quence of her destruction. 

These matters are readily ascertainable and if the German Gov- 
ernment desires any further evidence in substantiation of the claim 
on these points in addition to that furnished by the ship's papers, 
which are already in the possession of the German Government, any 
additional evidence found necessary will be produced. In that case, 
however, inasmuch as any evidence which the German Government 
may wish to have produced is more accessible and can more con- 
veniently be examined in the United States than elsewhere, on 
account of the presence there of the owners and captain of the 

* See Nos. 37 and 39. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 85 

William P. Frye and their documentary records, and other possible 
witnesses, the Government of the United States ventures to suggest 
the advisabihty of transferring the negotiations for the settlement of 
these points to the Imperial German Embassy at Washington. 

In view of the admission of liability by reason of specific treaty 
stipulations, it has become unnecessary to enter into a discussion of 
the meaning and effect of the Declaration of London, which is given 
some prominence in Your Excellency's note of April 5, further than 
to say that, as the German Government has already been advised, 
the Government of the United States does not regard the Declaration 
of London as in force. Bryan. 

(Dip. Corr. 88.) 

No. 44. German note, May 10, 191 5, expressing regret for 
the loss of American lives through the sinking of the "Lusi- 
tania." 

The German Foreign Office to the German Embassy at IVasJiingfon. 

Please communicate the following to the State Department: The 
German Government desires to express its deepest sympathy at the 
loss of lives on board the Liisitania. The responsibility rests, how- 
ever, with the British Government, which, through its plan of starv- 
ing the civilian population of Germany, has forced Germany to resort 
to retaliatory measures. 

In spite of the German oflfer to stop the submarine war in case 
the starvation plan was given up, British merchant vessels are being 
generally armed with guns and have repeatedly tried to ram sub- 
marines, so that a previous search was impossible. 

They cannot, therefore, be treated as ordinary merchant vessels. 
A recent declaration made to the British Parliament by the Parlia- 
mentary Secretary in answer to a question by Lord Charles Beres- 
ford said that at the present practically all British merchant vessels 
were armed and provided with hand grenades. 

Besides, it has been openly admitted by the English press that the 
Liisitania on previous voyages repeatedly carried large quantities of 
war material. On the present voyage the Liisitania carried 5,400 
cases of ammunition, while the rest of her cargo also consisted 
chiefly of contraband. 

If England, after repeated official and unofficial warnings, con- 
sidered herself able to declare that that boat ran no risk and thus 
light-heartedly assumed responsibility for the human life on board a 
steamer which, owing to its armament and cargo was liable to 
destruction, the German Government, in spite of its heartfelt sym- 
pathy for the loss of American lives, cannot but regret that Amer- 
icans felt more inclined to trust to English promises rather than to 
pay attention to the warnings from the German side. 

Foreign Office. 
(The New York Times, May 11, 191 5.) 

No. 45. German statement, May 11, 1915, in regard to the 
treatment of neutral vessels in the war zone. 

The German Minister for Foreign Affairs to the American Am- 
bassador. 

First. — The Imperial German Government has naturally no in- 
tention of causing to be attacked by submarines or aircraft such 



86 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

neutral ships of commerce in the zone of naval warfare, more 
definitely described in the notice of the German Admiralty staff 
of February 4 last, as have been guilty of no hostile act. On the 
contrary, the most definite instructions have repeatedly been issued 
to German war vessels to avoid attacks on such ships under all 
circumstances. Even when such ships have contraband of war on 
board they are dealt with by submarines solely according to the 
rules of international law applying to prize warfare. 

Second. — Should a neutral ship nevertheless come to harm through 
German submarines or aircraft on account of an unfortunate (X) 
[mistake?] in the above-mentioned zone of naval warfare, the Ger- 
man Government will unreservedly recognize its responsibility there- 
for. In such a case it will express its regrets and alford damages 
without first instituting a prize court action. 

Third. — It is the custom of the German Government as soon as the 
sinking of a neutral ship in the above-mentioned zone of naval war- 
fare is ascribed to German war vessels to institute an immediate 
investigation into the cause. If grounds appear thereby to be given 
for association of such a hypothesis, the German navy places itself 
in communication with the interested neutral Government so that 
the latter may also institute an investigation. If the German Govern- 
ment is thereby convinced that the ship has been destroyed by Ger- 
many's war vessels, it will not delay in carrying out the provisions of 
Paragraph 2 above. In case the German Government, contrary to 
the viewpoint of the neutral Government, is not convinced by the 
result of the investigation, the German Government has already on 
several occasions declared itself ready to allow the question to be 
decided by an international investigation commission, according to 
Chapter 3 of The Hague Convention of October 18, 1907, for the 
peaceful solution of international disputes. 

(The Nczv York Times, May 12, 1915.) 

No. 46. First American note, May 13, 19 15, regarding the 
loss of American lives and the injury to American commerce 
incidental to the naval warfare. 

The Secretary of State to the American Ambassador at Berlin. 

Please call on the Minister of Foreign Affairs and after reading to 
him this communication leave with him a copy. 

In view of recent acts of the German authorities in violation 
of American rights on the high seas which culminated in the tor- 
pedoing and sinking of the British steamship Liisitania on May 7, 
191 5, by which over 100 American citizens lost their lives, it is clearly 
wise and desirable that the Government of the United States and 
the Imperial German Government should come to a clear and full 
understanding as to the grave situation which has resulted. 

The sinking of the British passenger steamer Falaba by a German 
submarine on March 28, through which Leon C. Thrasher, an Amer- 
ican citizen, was drowned ; the attack on April 28 on the American 
vessel dishing by a German aeroplane; the torpedoing on May i of 
the American vessel GuMight by a German submarine, as a result 
of which two or more American citizens met their death ; and, finally, 
the torpedoing and sinking of the steamship Lusitania, constitute a 
series of events which the Government of the United States has 
observed with growing concern, distress, and amazement. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 87 

Recalling the humane and enlightened attitude hitherto assumed 
by the Imperial German Government in matters of international 
right, and particularly with regard to the freedom of the seas ; having 
learned to recognize the German views and the German inlluence 
in the field of international obligation as always engaged upon the 
side of justice and humanity; and having understood the instructions 
of the Imperial German Government to its naval commanders to 
be upon the same plane of humane action prescribed by the naval 
codes of other nations, the Government of the United States was 
loath to beheve — it cannot now bring itself to believe — that 
these acts, so absolutely contrary to the rules, the practices, and the 
spirit of modern warfare, could have the countenance or sanction 
of that great Government. It feels it to be its duty, therefore, to 
address the Imperial German Government concerning them with the 
utmost frankness and in the earnest hope that it is not mistaken in 
expecting action on the part of the Imperial German Government 
which will correct the unfortunate impressions which have been 
created and vindicate once more the position of that Government with 
regard to the sacred freedom of the seas. 

The Government of the United States has been apprised that the 
Imperial German Government considered themselves to be obliged 
by the extraordinary circumstances of the present war and the 
measures adopted by their adversaries in seeking to cut Germany off 
from all commerce, to adopt methods of retaliation which go much 
beyond the ordinary methods of warfare at sea, in the proclamation 
of a war zone from which they have warned neutral ships to keep 
away. This Government has already taken occasion to inform the 
Imperial German Government that it cannot admit the adoption of 
such measures or such a warning of danger to operate as in any 
degree an abbreviation of the rights of American shipmasters or of 
American citizens bound on lawful errands as passengers on mer- 
chant ships of belligerent nationality; and that it must hold the 
Imperial German Government to a strict accounta1)ility for any 111- 
frin.crement of those rights, intentional or incidental. It does not 
understand the Imperial German Government to question those rights. 
It assumes, on the contrary, that the Imperial C;overnment accept, 
as of course, the rule that the lives of noncoml)atants, whether they 
be of neutral citizenship or citizens of one of the nations at war, 
cannot lawfully or rightfully be put in jeopardy by the capture or 
destruction of an unarmed merchantman, and recognize also, as all 
other nations do, the obligation to take the usual precaution of visit 
and search to ascertain whether a suspected merchantman is 111 fact 
of belligerent nationality or is in fact carrying contraband of war 
under a neutral flag. . ,, 

The Government of the United States, therefore, desires to call 
the attention of the Imperial German Government with the utmost 
earnestness to the fact that the ol)j action to their present method 
of attack against the trade of their enemies lies in the practical 
impossibility of employing submarines in the destruction of commerce 
wilhout disregarding those rules of fairness, reason, justice, and 
humanity, which all modern opinion regards as imperative. It is 
practically impossib!e for the officers of a submarme to visit a mer- 
chantmai7at sea and examine her papers and cargo. ^^ PJ^f J^^^^^ 
impossible for them to make a prize of her; and if they cannot put 
a pTe crew on board of her, they cannot sink her without leaving 



88 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

her crew and all on board of her to the mercy of the sea in her small 
boats. These facts it is understood the Imperial German Government 
frankly admit. We are informed that in the instances of which we 
have spoken time enough for even that poor measure of safety was 
not given, and in at least two of the cases cited not so much as a 
warning was received. Manifestly submarines cannot be used against 
merchantmen, as the last few weeks have shown, without an inevi- 
table violation of many sacred principles of justice and humanity. 

American citizens act within their indisputable rights in taking 
their ships and in traveling wherever their legitimate business calls 
them upon the high seas, and exercise those rights in what should 
be the well-justified confidence that their lives will not be endangered 
by acts done in clear violation of universally acknowledged interna- 
tional obligations, and certainly in the confidence that their own 
Government will sustain them in the exercise of their rights. 

There was recently published in the newspapers of the United 
States, I regret to inform the Imperial German Government, a formal 
warning, purporting to come from the Imperial German Embassy at 
Washington, addressed to the people of the United States, and stating, 
in effect, that any citizen of the United States who exercised his 
right of free travel upon the seas would do so at his peril if his 
journey should take him within the zone of waters within which 
the Imperial German navy was using submarines against the com- 
merce of Great Britain and France, notwithstanding the respectful 
but very earnest protest of his Government, the Government of the 
United States. I do not refer to this for the purpose of calling the 
attention of the Imperial German Government at this time to the 
surprising irregularity of a communication from the Imperial German 
Embassy at Washington addressed to the people of the United States 
through the newspapers, but only for the purpose of pointing out 
that no warning that an unlawful and inhumane act will be com- 
mitted can possibly be accepted as an excuse or palliation for that 
act or as an abatement of the responsibility for its commission. 

Long acquainted as this Government has been with the character 
of the Imperial German Government and with the high principles 
of equity by which they have in the past been a-ctuated and guided, 
the Government of the United States cannot believe that the com- 
manders of the vessels which committed these acts of lawlessness 
did so except under a misapprehension of the orders issued by the 
Imperial German naval authorities. It takes it for granted that, at 
least within the practical possibilities of every such case, the com- 
manders even of submarines were expected to do nothing that would 
involve the lives of noncombatants or the safety o-f neutral ships, 
even at the cost of failing of their object of capture or destruction. 
It confidently expects, therefore, that the Imperial German Govern- 
ment will disavow the acts of which the Government of the United 
States complains, that they will make reparation so far as reparation 
is possible for injuries which are without measure, and that they will 
take immediate steps to prevent the recurrence of anything so 
obviously subversive of the principles of warfare for which the 
Imperial German Government have in the past so wisely and so 
firmly contended. 

The Government and people of the United States look to the 
Imperial German Government for just, prompt, and enlightened action 
in this vital matter with the greater confidence because the United 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 89 

States and Germany are bound together not only by special ties of 
friendship but also by the explicit stipulations of the treaty of 1828 
between the United States and the Kingdom of Prussia. 

Expressions of regret and offers of reparation in case of the de- 
struction of neutral ships sunk by mistake, while they may satisfy 
international obligations, if no loss of life results, cannot justify 
or excuse a practice, the natural and necessary effect of which is 
to subject neutral nations and neutral persons to new and immeas- 
urable risks. 

The Imperial German Government will not expect the Govern- 
ment of the United States to omit any word or any act necessary 
to the performance of its sacred duty of maintaining the rights of 
the United States and its citizens and of safeguarding their free 
exercise and enjoyment. 

Bryan. 
{Dip. Corr. 75-77-) 

No. 47. British memorandum, May 20, 191 5, in reference to 
the detention of American ships and cargoes.* 

First. — There are at the present moment three American ships 
detained in this country. Two of them are cotton ships, which are 
dealt with below. The third is the steamer Joseph IV. Fordncy. 
This vessel, with a cargo of foodstuffs consigned to E. Klingener at 
Malmo (Sweden), was brought into Kirkwall on April 8. She had 
been sighted by His Majesty's ships about ten miles from the Nor- 
wegian coast and had thereupon endeavored, with the evident desire 
to evade search, to escape rapidly into Norwegian territorial waters, 
but without success. 

On the vessel's arrival in Kirkwall, inquiries were at once ad- 
dressed to his Majesty's Minister at Stockholm, with regard to the 
consignee of the cargo, and a reply was received to the effect that 
no person of that name could be identified at Malmo, though there 
was a person of that name who resided at Gothenburg, and was man- 
ager of the Gothenburg branch of Hugo Hartvig, and who had stated 
that the consignments addressed to him on board the Joseph W. 
Fordney were intended for storage in Malmo. 

Second. — The suspicious conduct of the vessel in endeavoring to 
elude His Majesty's patrols and the known connections of the con- 
signee of her cargo have tended to confirm other evidence, which 
has come to the knowledge of His Majesty's Government, that the 
foodstuffs were in reality destined for Germany. It was accordingly 
decided that the cargo must be placed in the prize court, and the 
vessel is at present discharging at Portishead, England, on the com- 
pletion of which operation she will be released. 

His Majesty's Government feel satisfied that in the circumstances 
of this case undue interference with American interests cannot with 
reason be imputed to them. 

Third. — The number of neutral vessels carrying American cargoes 
and at present held up is thirty-six. Of these twenty-three carry 
cargoes of American cotton. The United States Government are 
aware that since the enforcement of the blockade measures an- 

* The memorandum has a paragraph attached comparing the exports of the United 
States to belligerent and neutral countries in January and February. 1914, with those 
in the same months of 191 5. An additional table shows an mcrease in the American 
exportation of bacon and lard to neutral countries in March. 1915- 



90 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

nounced in the supplement to The London Gazette of the 12th of 
March, last, His Majesty's Government have acted as regards ship- 
ments of American cotton in accordance with the provisions of an 
arrangement arrived at in collaboration with representatives of the 
American cotton interests. The terms of the arrangement are as 
follows : 

A. — All cotton for which contracts, sale and freight engagements 
already have been made before March 2 is to be allowed free transit 
or bought at the contract price if stopped, provided the ship sails 
not later than the 31st of March. 

B. — Similar treatment is to be accorded all cotton insured before 
the 2d of March, provided it is put aboard not later than the i6th of 
March. 

C. — All shipments of cotton claiming the above protection are to 
be declared before sailing, and documents produced and certificates 
obtained from Consular officers or other authorities fixed by the 
Government. 

Fourth. — In accepting this scheme, which it may be noted applies 
to shipments of cotton for a neutral destination only, the principal 
representatives of the American cotton interests described it to his 
Majesty's Ambassador at Washington as conceding all that the 
American interests could properly ask. It was never suggested that 
vessels or cargoes with an enemy destination should be allowed to 
proceed. His Majesty's Government were, moreover, given to under- 
stand that the provisions of the arrangement were acceptable to the 
United States Government. 

Fifth. — It is intended shortly to furnish a statement showing pre- 
cisely what cargoes or portions of cargoes his Majesty's Govern- 
ment have dealt with under the above arrangement, and as regards 
those which they have decided to purchase at the contract price under 
the terms of Paragraph A of the arrangement, direct discussions 
have already been opened with the special representatives of the 
American parties interested in London. 

Sixth. — A considerable portion of the cotton has already been 
sold, and arrangements are being made for handing over the proceeds 
to the parties entitled to receive the total value, as a first installment 
of the completed transaction. It is obvious that all these arrange- 
ments require some time for adjustment. Meanwhile, it is not be- 
lieved that the original owners can, as appears to be apprehended, 
be suffering acutely by the delay of full payment. It is to be pre- 
sumed that in accordance with the customs of trade, the owners drew 
bills to the value of their goods before or at the time of shipment, 
and, if such bills have been negotiated in the usual way, it is difficult 
to understand why the drawers should be put to inconvenience on 
this account, at least before the date when the bills fall due. 

Seventh. — On an impartial review of the facts it will, his Maj- 
esty's Government feel sure, be admitted that no arbitrary interfer- 
ence with American interests has, in regard to these cargoes, oc- 
curred, seeing that his Majesty's Government has acted throughout 
in conformity with the terms of an arrangement agreeable to the 
interests concerned, and that United States citizens will suffer no 
pecuniary loss. 

Eighth. — As regards other American cargoes, or portions of car- 
goes, which have been placed in the prize court, his Majesty's Gov- 
ernment resort to this measure in cases where either the goods con- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 91 

cerned are contraband or there is evidence that, although ostensibly 
consigned to a person in neutral countries, they are in reality 
destined to the enemy in contravention of the rules of blockade. 
The right to submit such cases to the public investigation of a judicial 
tribunal is one which his Majesty's Government cannot forego, and 
they feel convinced that the enlightened opinion in the United States 
cannot adversely criticise their course of action in this respect. 

Ninth. — It is true that a number of these cases have been pending 
in the prize court for some time. This is notably the case in regard 
to certain vessels carrying large shipments of meat and lard osten- 
sibly consigned to Scandinavian ports. The United States Govern- 
ment are, however, no doubt aware that much of the delay involved 
in these instances is due to the fact that the negotiations have been 
carried on for many weeks with a representative of the principal 
American meat packers, for an arrangement designated to limit 
importation into neutral countries adjacent to Germany, to quantities 
actually required in those countries for bona fide home consumption. 
The American meat packers have demanded as a part of the settle- 
ment to be agreed upon, that His Majesty's Government should buy 
the cargoes of several ships now held up in the prize court. Hence 
the delay in bringing these cases to adjudication. 

The negotiations for an amicable settlement have, unfortunately, 
come to a standstill owing to the exorbitant terms insisted upon by 
the representative of the American packers. This stage having now 
been reached His Majesty's Government have decided to go on with 
the prize court proceedings in these cases, and it is not expected that 
a decision will be much longer delayed. 

Tenth. — It may finally be pointed out that repeated complaint, as 
to injury suffered generally by American trade in consequence of 
interference due to British naval measures, derives little substance 
from the published American trade returns. A table of figures taken 
from these returns and showing the amount of recent American trade 
with Germany and with neutral countries supplying Germany, is an- 
nexed hereto. It certainly tends to disprove any contention that 
American trade with neutral countries has recently suffered. It will 
be seen that whereas American exports to Germany and Austria in 
February, 1915, fell by $21,500,000, as compared with the same month 
in 1914, American exports to Scandinavia, Holland and Italy rose by 
the enormous figure of $61,100,000. 

Eleventh. — Similar figures for the month of March have not yet 
reached His Majesty's Government, but they have received statistics 
for that month of the value of exports and imports through New 
York, as issued by the Collector of the Port, and while pointing out 
a large increase in the value of exports in 1915, compared with those 
of 1914, as shown in the tables annexed, they desire especially to call 
attention to a separate statement indicating the increase in the 
amount of the export to Scandinavian and Dutch ports of two com- 
modities only — bacon and lard. These figures show that as against 
1,253 boxes of bacon and 9,816 tierces of lard exported to the ports 
noted in the above countries in March, 1914, there were exported in 
March, 1915, 32,222 boxes of bacon and 95,676 tierces of lard. 

Twelfth.— His Majesty's Government consider that the abnormal 
increase in supplies imported by neutral countries, as shown in these 
statistics, alone justifies their assumption as to the ultnnate destina- 
tion of many items in cargoes consigned to one or the other of the 



92 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

countries in question in the vessels which they have detained, but 
they would call attention to the fact that it is only when they have 
believed themselves to be in possession of conclusive evidence of the 
enemy destination of a cargo that they have seized such a cargo, and 
that American interests, as for instance in the case of cotton, have 
received especially sympathetic consideration. 
(The New York Times, May 21, 1915.) 

No. 48. Statement of the Secretary of State, May 21, 191 5, 
regarding an error in No. 47. 

The foreign trade advisers' attention has been called to the state- 
ment of the Foreign Office of Great Britain, published in this morn- 
ing's papers, an extract from which follows : 

" Fourth. — In accepting this scheme, which, it may be noted, ap- 
plies to shipments of cotton for a neutral destination only, the prin- 
cipal representative of the American interests described it to his 
Majesty's Ambassador at Washington as conceding all that the 
American interests could properly ask. It was never suggested that 
vessels or cargoes with an enemy destination should be allowed to 
proceed. His Majesty's Government were, moreover, given to under- 
stand that the provisions of the arrangements were acceptable to the 
United States Government." 

The plan referred to is the one which was entered into between 
the cotton shippers of this country and the British Embassy, a portion 
of which is quoted in the statement of the British Foreign Office. 

Without discussing at this time the statement that " it was never 
suggested that vessels or cargoes with an enemy destination should 
be allowed to proceed," the foreign trade advisers, who informally and 
unofficially represented the cotton shippers in the negotiations which 
led to the so-called cotton arrangement, state that it was distinctly 
understood between Sir Arthur Cecil Spring-Rice, the British Am- 
bassador, and Robert F. Rose, the foreign trade adviser conducting 
this discussion on behalf of the American cotton exporters, that 
nothing done by the foreign trade advisers should be regarded as 
official, and that everything done was to be considered as informal 
and unofficial, and in no way binding the United States Government 
to any arrangement reached, or be construed as a recognition of 
the Order in Council to be issued or the Declaration of March i, 
which has been issued. This statement was made to the British 
Ambassador on March 3, when the first conference in the matter 
was held, was repeated at each subsequent conference, and each 
time the absolute assurance from the British Ambassador was re- 
ceived that, in acting for the cotton shippers in any way, the foreign 
trade advisers were to be regarded as not representing the United 
States Government in any manner. 

(The New York Times, May 22, ipi^.) 

No. 49. Statement of the British Embassy, May 21, 191 5, 
correcting the error in No. 47. 

The terms of the arrangement quoted in the British statement as 
telegraphed were arrived at in London between a private representa- 
tive of the American cotton interests in London and British officials 
in London, The reference to the British Ambassador in Paragraph 
4 is, therefore, an error. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



93 



The arrangement in question formed the subject of conversations 
between the Ambassador and representatives of the cotton interests 
in this country. There never was any question of a formal and 
official understanding between the United States Government and the 
British Embassy. 

{The Nczv York Times, May 22, 191 3.) 

No. 50. First German note, May 28, 191 5, regarding the 
loss of American lives and the injury to American commerce 
incidental to the naval v^^arfare.* 

The Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to make the following reply to 
the note of His Excellency, Mr. James W. Gerard, Ambassador of 
the United States of America, dated the fifteenth instant, on the 
subject of the impairment of many American interests by the Ger- 
man submarine war. 

The Imperial Government has subjected the statements of the Gov- 
ernment of the United States to a careful examniation and has the 
lively wish on its part also to contribute in a convincing and friendly 
manner to clear up any misunderstandings which may have entered 
into the relations of the two Governments through the events men- 
tioned by the American Government. 

With regard firstly to the cases of the American steamers Ciishing 
and Gtilflight, the American Embassy has already been informed 
that it is far from the German Government to have any intention 
of ordering attacks by submarines or flyers on neutral vessels in 
the zone which have not been guilty of any hostile act; on the con- 
trary the most explicit instructions have been repeatedly given the 
German armed forces to avoid attacking such vessels. If neutral 
vessels have come to grief through the German submarine war dur- 
ing the past few months by mistake, it is a question of isolated and 
exceptional cases which are traceable to the misuse of flags ])y the 
British Government in connection with carelessness or suspicious 
actions on the part of the captains of the vessels. In all cases where 
a neutral vessel through no fault of its own has come to grief 
through the German submarine or flyers according to the facts as 
ascertained by the German Government, this Government has ex- 
pressed its regret at the unfortunate occurrence and promised in- 
demnification where the facts justified it. The German Government 
will treat the cases of the American steamers dishing and Gulflight 
according to the same principles. An investigation of these cases 
is in progress. Its results will be comnnmicated to the Embassy 
shortly. The investigation might, if thought desirable, be supple- 
mented by an International Commission of Inquiry, pursuant to 
Title Three of The Hague Convention of October 18, 1907, for the 
pacific settlement of international disputes. 

In the case of the sinking of the English steamer Falaba, the com- 
mander of the German submarine had the intention of allowing 
passengers and crew ample opportunity to save themselves. 

It was not until the captain disregarded the order to lay to and 
took to flight, sending yp rocket signals for help, that the German 
commander ordered the crew and passengers by signals and mega- 
phone to leave the ship within 10 minutes. As a matter of fact he 

* See No. 46. 



94 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

allowed them 23 minutes and did not fire the torpedo until suspicious 
steamers were hurrying to the aid of the Falaba. 

With regard to the loss of life when the British passenger steamer 
Lusitania was sunk, the German Government has already expressed 
its deep regret to the neutral Governments concerned that nationals 
of those countries lost their lives on that occasion. The Imperial 
Government must state for the rest the impression that certain 
important facts most directly connected with the sinking of the 
Lusitania may have escaped the attention of the Government of the 
United States. It therefore considers it necessary in the interest of 
the clear and full understanding aimed at by either Government 
primarily to convince itself that the reports of the facts which are 
before the two Governments are complete and in agreement. 

The Government of the United States proceeds on the assumption 
that the Lusitania is to be considered as an ordinary unarmed mer- 
chant vessel. The Imperial Government begs in this connection to 
point out that the Lusitania was one of the largest and fastest Eng- 
lish commerce steamers, constructed with Government funds as 
auxiliary cruisers, and is expressly included in the navy list pub- 
lished by British Admiralty. It is moreover known to the Imperial 
Government from reliable information furnished by its officials and 
neutral passengers that for some time practically all the more val- 
uable English merchant vessels have been provided with guns, 
ammunition and other weapons, and reinforced with a crew specially 
practiced in manning guns. According to reports at hand here, the 
Lusitania when she left New York undoubtedly had guns on board 
which were mounted under decks and masked. 

The Imperial Government furthermore has the honor to direct 
the particular attention of the American Government to the fact that 
the British Admiralty by a secret instruction of February of this 
year advised the British merchant marine not only to seek protection 
behind neutral flags and markings, but even when so disguised to 
attack German submarines by ramming them. High rewards have 
been offered by the British Government as a special incentive for 
the destruction of the submarines by merchant vessels, and such 
rewards have already been paid out. In view of these facts, which 
are satisfactorily known to it, the Imperial Government is unable to 
consider English merchant vessels any longer as " undefended ter- 
ritory " in the zone of maritime war designated by the Admiralty 
Staff of the Imperial German navy, the German commanders are 
consequently no longer in a position to observe the rules of capture 
otherwise usual and with which they invariably complied before this. 
Lastly, the Imperial Government must specially point out that on 
her last trip the Lusitania, as on earlier occasions, had Canadian 
troops and munitions on board, including no less than 5,400 cases of 
ammunition destined for the destruction of brave German soldiers 
who are fulfilling with self-sacrifice and devotion their duty in the 
service of the Fatherland.. The German Government believes that 
it acts in just self-defence when it seeks to protect the Hves of its 
soldiers by destroying ammunition destined for the enemy with the 
means of war at its command. The English steamship company must 
have been aware of the dangers to which passengers on board the 
Lusitania were exposed under the circumstances. In taking them 
on board in spite of this the company quite deliberately tried to use 
the lives of American citizens as protection for the ammunition 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 95 

carried, and violated the clear provisions of American laws which 
expressly prohibit, and provide punishment for, the carrying of 
passengers on ships which have explosives on board. The company 
thereby wantonly caused the death of so many passengers. Accord- 
ing to the express report of the submarine commander concerned, 
which is further confirmed by all other reports, there can be no doubt 
that the rapid sinking of the Lusitania was primarily due to the 
explosion of the cargo of ammunition caused by the torpedo. Other- 
wise, in all human prol)ability, the passengers of the Lusitania would 
have been saved. 

The Imperial Government holds the facts recited above to be of 
sufficient importance to recommend them to a careful examination 
by the American Government. The Imperial Government begs to 
reserve a final statement of its position with regard to the demands 
made in connection with the sinking of the Lusitania until a reply 
is received from the American Government, and believes that it 
should recall here that it took note with satisfaction of the proposals 
of good offices submitted by the American Government in Berlin and 
London with a view to paving the way for a modus vivendi for the 
conduct of maritime war between Germany and Great Britain. The 
Imperial Government furnished at that time ample evidence of its 
good will by its willingness to consider these proposals. The realiza- 
tion of these proposals failed, as is known, on account of their rejec- 
tion by the Government of Great Britain. 

The undersigned requests His Excellency, the Ambassador, to 
bring the above to the knowledge of the American Government and 
avails himself of the opportunity to renew, etc. 

Von Jagovv. 
(Dip. Corr. — leaflet.) . 

No. 51. German note, June i, 1915, in reference to attacks 
on the " Gulflight " and the " Gushing." 

The Minister for Foreign Affairs to the American Ambassador. 

Referring to the note of May 28, the undersigned has the honor to 
inform His Excellency the American {sic) Ambassador of the United 
States of America, Mr. James W. Gerard, that the examination 
undertaken on the part of the German Government concerning the 
American steamers Gtdflight and dishing has led to the following 
conclusions : 

In regard to the attack on the steamer Gulflight, the commander of 
a German submarine saw on the afternoon of May i, in the vicinity 
of the Scilly Islands, a large merchant steamer coming in his direc- 
tion which was accompanied by two smaller vessels. These latter 
took such position in relation to the steamer that they formed a 
regulation safeguard against submarines; moreover, one of them had 
a wireless apparatus, which is not usual with small vessels. From 
this it evidently was a case of English convoy vessels. Since such 
vessels are frequently armed, the submarine could not approach the 
steamer on the surface of the water without running the danger of 
destruction. It was, on the other hand, to be assumed that the 
steamer was of consi11eral)le value to the British Government, since 
it was so guarded. The commander could see no neutral markings 
on it of any kind — that is, distinctive marks painted on the free- 
board recognizal)le at a distance, such as are now usual on neutral 



g6 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

ships in the EngHsh zone of naval warfare. In consequence he 
arrived at the conclusion from all the circumstances that he had to 
deal with an English steamer, submerged, and attacked. 

The torpedo came in the immediate neighborhood of one of the 
convoy ships, which at once rapidly approached the point of firing; 
that the submarine was forced to go to a great depth to avoid being 
rammed. The conclusion of the commander that an English convoy 
ship was concerned was in this way confirmed. That the attacked 
steamer carried the American flag was first observed at the moment 
of firing the shot. The fact that the steamship was pursuing a 
course which led neither to nor from America was a further reason 
why it did not occur to the commander of the submarine that he 
was dealing with an American steamship. 

Upon scrutiny of the time and place of the occurrence described, 
the German Government has become convinced that the attacked 
steamship was actually the American steamship GulHight. There can 
be no doubt, according to the attendant circumstances, that the attack 
is to be attributed to an unfortunate accident, and not to the fault 
of the commander. The German Government expresses its regrets 
to the Government of the United States concerning this incident, and 
declares itself ready to furnish full recompense for the damage 
thereby sustained by American citizens. It is left to the discretion 
of the American Government to present a statement of this damage, 
or, if doubt may arise over individual points, to designate an expert 
who would have to determine, together with a German expert, the 
amount of damage. 

It has not yet been possible by means of an inquiry to clear up 
fully the case of the American ship Gushing. Official reports avail- 
able report only one merchant ship attacked by a German flying 
machine in the vicinity of Nordhind Lightship, The German aviator 
was forced to consider the vessel as hostile because it carried no flag, 
and, further, because of no recognizable neutral markings. The 
attack of four bombs was, of course, not aimed at any American 
ship. 

However, that the ship attacked was the American steamer Ctishing 
is possible, considering the time and place of the occurrence. Never- 
theless, the German Government accordingly requests of the Ameri- 
can Government that it communicate to the German Government the 
material which was submitted for judgment, in order that, with this 
as a basis, a further position can be taken in the matter. 

The undersigned leaves it to the Ambassador to bring the fore- 
going to the immediate attention of his Government, and takes this 
opportunity to renew to him the assurance of his most distinguished 
consideration. 

VoN Jagow, Minister for Foreign Affairs. 
{The Nezv York Times, June 5, 191 5.) 

No. 52. Second German note, June 7, 1915, in regard to the 
" William P. Frye." * 

The Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to make the following reply to 
the note of His Excellency, Mr. James W. Gerard, Ambassador of 
the United States of America, dated April 30, 1915, Foreign Office 

* See Nos. 2:7^ 39 and 43. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 97 

number 3,291, on the subject of the sinking of the American saihng 
vessel William P. Fryc by the German auxihary cruiser Frins Eitcl 
Fricdrich ; 

The German Government cannot admit that, as the American Gov- 
ernment assumes, the destruction of the saihng vessel mentioned 
constitutes a violation of the treaties concluded between Prussia and 
the United States at an earlier date and now applicable to the rela- 
tions between the German Empire and the United States, or of the 
American rights derived therefrom. For these treaties did not have 
the intention of depriving one of the contracting parties engaged in 
war of the right of stopping the supply of contraband to his enemy 
when he recognizes the supply of such as detrimental to his military 
interests. 

On the contrary, article XIII of the Prussian-American treaty of 
July II, 1799, expressly reserves to the party at war the right to 
stop the carrying of contraband and to detain the contraband. It 
follows, then, that if it cannot be accomplished in any other way 
the stopping of the supply may in the extreme case be effected 
by the destruction of the contraband and of the ship carrying it. 
As a matter of course, the obligation of the party at war to pay 
compensation to the parties interested of the neutral contracting 
party remains in force whatever be the manner of stopping the 
supply. 

According to general principles of international law, any exercises 
of the right of control over the trade in contraband is subject to 
the decision of the prize courts, even though such right may be 
restricted by special treaties. 

At the beginning of the present war Germany, pursuant to these 
principles, established by law prize jurisdiction for cases of the kind 
under consideration. The case of the William P. Frye is likewise 
subject to the German prize jurisdiction, for the Prussian-American 
treaties mentioned contain no stipulation as to how the amount of 
the compensation, provided by article XIII of the treaties, cited, is 
to be fixed. 

The German Government therefore complies with its treaty obliga- 
tions to a full extent when the prize courts instituted by it in accord- 
ance with international law proceed in pursuance to the treaty stipu- 
lation and thus award the American interested an equitable 
indemnity. There would, therefore, be no foundation for a claim of 
the American Government unless the prize court should not grant 
indemnity in accordance with the treaty ; in such event, however, the 
German Government would not hesitate to arrange for equitable 
indemnity notwithstanding. _ 

For the rest, prize proceedings of the case of the Frye are nidis- 
pensable, apart from the American claims, for the reason that other 
claims of the neutral and enemy interested parties are to be con- 
sidered in the matter. 

As was stated in the note of April 4 last, the prize court should 
have to decide the question whether the destruction of the ship and 
cargo was legal, whether and under what conditions the property 
sunk was liable to confiscation, and to whom and in what amount 
indemnity is to be paid, provided application therefor is received. 

Since the decision of the prize court must first be awaited before 
any further position is taken by the German Government, the simplest 
way for the American interested parties to settle their claims would 



98 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

be to enter them in the competent records in accordance with the 
provision of the German code of prize proceedings. 

The undersigned begs to suggest that the ambassador bring the 
above to the knowledge of his Government and avail himself, etc. 

Von Jagow. 
(The New York Times, June ii, 1915.) 

No. 53. Second American note, June 9, 1915, regarding the 
loss of American lives and the injury to American commerce in- 
cidental to the naval warfare.* 

The Secretary of State ad interim to the American Ambassador 
at Berlin. 

You are instructed to deliver textually the following note to the 
Minister of Foreign Affairs: 

In compliance with Your Excellency's request I did not fail to 
transmit to my Government immediately upon their receipt your 
note of May 28 in reply to my note of May 15, and your supplemen- 
tary note of June i, setting forth the conclusions so far as reached 
by the Imperial German Government concerning the attacks on the 
American steamers Cushing and GuMight. I am now instructed by 
my Government to communicate the following in reply : 

The Government of the United States notes with gratification the 
full recognition by the Imperial German Government, in discussing 
the cases of the Cushing and the Gidflight, of the principle of the 
freedom of all parts of the open sea to neutral ships and the frank 
willingness of the Imperial German Government to acknowledge and 
meet its liability where the fact of attack upon neutral ships " which 
have not been guilty of any hostile act" by German aircraft or 
vessels of war is satisfactorily established ; and the Government of 
the United States will in due course lay before the Imperial German 
Government, as it requests, full information concerning ftie attack 
on the steamer dishing. 

With regard to the sinking of the steamer Falaba, by which an 
American citizen lost his life, the Government of the United States 
is surprised to find the Imperial German Government contending 
that an effort on the part of a merchantman to escape capture and 
secure assistance alters the obligation of the officer seekino^ to make 
the capture in respect of the safety of the lives of those on board the 
merchantman, although the vessel had ceased her attempt to escape 
when torpedoed. These are not new circumstances. They have been 
in the minds of statesmen and of international jurists throughout the 
development of naval warfare, and the Government of the United 
States does not understand that they have ever been held to alter 
the principles of humanity upon which it has insisted. Nothing but 
actual forcible resistance or continued efforts to escape by flight 
when ordered to stop for the purpose of visit on the part of the 
merchantman has ever been held to forfeit the lives of her passengers 
or crew. The Government of the United States, however, does not 
understand that the Imperial German Government is seeking in this 
case to relieve itself of liability, but only intends to set forth the 
circumstances which led the commander of the submarine to allow 
himself to be hurried into the course which he took. 

Your Excellency's note, in discussing the loss of American lives 

* See Nos. 46 and 50. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 



99 



resulting from the sinking of the steamship Lusitania, adverts at 
some length to certain information which the Imperial German 
Government has received with regard to the character and outfit 
of that vessel, and Your Excellency expresses the fear that this 
information may not have been brought to the attention of the 
Government of the United States. It is stated in the note that the 
Lusitania was undoubtedly equipped with masked guns, supplied with 
trained gunners and special ammunition, transporting troops from 
Canada, carrying a cargo not permitted under the laws of the United 
States to a vessel also carrying passengers, and serving, in virtual 
effect, as an auxiliary to the naval forces of Great Britain. Fortu- 
nately these are matters concerning which the Government of the 
United States is in a position to give the Imperial German Govern- 
ment official information. Of the facts alleged in Your Excellency's 
note, if true, the Government of the United States would have been 
bound to take official cognizance in performing its recognized duty 
as a neutral power and in enforcing its national laws. It was its 
duty to see to it that the Lusitania was not armed for offensive action, 
that she was not serving as a transport, that she did not carry a 
cargo prohibited by the statutes of the United States, and that, if 
in fact she was a naval vessel of Great Britain, she should not receive 
clearance as a merchantman ; and it performed that duty and en- 
forced its statutes with scrupulous vigilance through its regularly 
constituted officials. It is able, therefore, to assure the Imperial 
German Government that it has been misinformed. If the Imperial 
German Government should deem itself to be in possession of con- 
vincing evidence that the officials of the Government of the United 
States did not perform these duties with thoroughness the Govern- 
ment of the United States sincerely hopes that it will submit that 
evidence for consideration. 

Whatever may be the contentions of the Imperial German Govern- 
ment regarding the carriage of contraband of war on board the 
Lusitania or regarding the explosion of that material by the torpedo, 
it need only be said that in the view of this Government these con- 
tentions are irrelevant to the question of the legality of the methods 
used by the German naval authorities in sinking the vessel. 

But the sinking of passenger ships involves principles of humanity 
which throw into the background any special circumstances of detail 
that may be thought to affect the cases, principles which lift it, as 
the Imperial German Government will no doubt be quick to recognize 
and acknowledge, out of the class of ordinary subjects of diplo- 
matic discussion or of international controversy. Whatever be the 
other facts regarding the Lusitania, the principal fact is that a great 
steamer, primarily and chiefly a conveyance for passengers, and 
carrying more than a thousand souls who had no part or lot in 
the conduct of the war, was torpedoed and sunk without so much 
as a challenge or a warning, and that men, women, and children 
were sent to their death in circumstances unparalleled in modern 
warfare. The fact that more than one hundred American citizens 
were among those who perished made it the duty of the Government 
of the United States to speak of these things and once more, with 
solemn emphasis, to i:all the attention of the Imperial German Gov- 
ernment to the grave responsibility which the Government of the 
United States conceives that it has incurred in this tragic occur- 
rence, and to the indisputable principle upon which that respon- 



loo THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

sibility rests. The Government of the United States is contending 
for something much greater than mere rights of property or privileges 
of commerce. It is contending for nothing less high and sacred 
than the rights of humanity, which every Government honors itself 
in respecting and which no Government is justified in resigning on 
behalf of those under its care and authority. Only her actual re- 
sistance to capture or refusal to stoo when ordered to do so for 
the purpose of visit could have afforded the commander of the 
submarine any justification for so much as putting the lives of those 
on board the ship in jeopardy. This principle the Government of 
the United States understands the explicit instructions issued on 
August 3, 1914, by the Imperial German Admiralty to its comman- 
ders at sea to have recognized and embodied, as do the naval codes 
of all other nations, and upon it every traveler and seaman had a 
right to depend. It is upon this principle of humanity as well as 
upon the law founded upon this principle that the United States 
must stand. 

The Government of the United States is happy to observe that 
Your Excellency's note closes with the intimation that the Imperial 
German Government is willing, now as before, to accept the good 
offices of the United States in an attempt to come to an understand- 
ing with the Government of Great Britain by which the character 
and conditions of the war upon the sea may be changed. The Gov- 
ernment of the United States would consider it a privilege thus to 
serve its friends and the world. It stands ready at any time to 
convey to either Government any intimation or suggestion the other 
may be willing to have it convey and cordially invites the Imperial 
German Government to make use of its services in this way at its 
convenience. The whole world is concerned in anything that may 
bring about even a partial accommodation of interests or in any way 
mitigate the terrors of the present distressing conflict. 

In the meantime, whatever arrangement may happily be made be- 
tween the parties to the war, and whatever may in the opinion of 
the Imperial German Government have been the provocation or 
the circumstantial justification for the past acts of its commanders 
at sea, the Government of the United States confidently looks to 
see the justice and humanity of the Government of Germany vindi- 
cated in all cases where Americans have been wronged or their 
rights as neutrals invaded. 

The Government of the United States therefore very earnestly 
and very solemnly renews the representations of its note transmitted 
to the Imperial German Government on the 15th of May, and relies 
in these representations upon the principles of humanity, the uni- 
versally recognized understandings of international law, and the 
ancient friendship of the German nation. 

The Government of the United States cannot admit that the 
proclamation of a war zone from which neutral ships have been 
warned to keep away may be made to operate as in any degree an 
abbreviation of the rights either of American shipmasters or of 
American citizens bound on lawful errands as passengers on mer- 
chant ships of belligerent nationality. It does not understand the 
Imperial German Government to question those rights. It under- 
stands it, also, to accept as established beyond question the principle 
that the lives of noncombatants cannot lawfully or rightfully be put 
in jeopardy by the capture or destruction of an unresisting mer- 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA loi 

chantman, and to recognize the obligation to take sufficient pre- 
caution to ascertain whether a suspected merchantman is in fact of 
belligerent nationality or is in fact carrying contraband of war under 
a neutral flag. The Government of the United States therefore 
deems it reasonable to expect that the Imperial German Government 
vvill adopt the measures necessary to put these principles into prac- 
tice in respect of the safeguarding of American lives and American 
ships, and asks for assurances that this will be done. 

Robert Lansing. 
{Dip. Corr.— leaflet.) 

No. 54. British memorandum, June 17, 1915, in reference 
to the treatment of American commerce.* 

The Secretary of State for Foreign Affairs ad interim to the 
American Ambassador. 

1. His Majesty's Government have on various occasions, and 
notably in the communication which was addressed to the United 
States Ambassador on March 15 last, given assurances to the United 
States Government that they would make it their first aim to mini- 
mize the inconvenience which must inevitably be caused to neutral 
commerce from the existence of a state of war at sea, and in par- 
ticular from the measures taken by the allied Governments for the 
restriction of the enemies' oversea trade. In view of the representa- 
tion and complaints made to this department by the Ambassador from 
time to time as to the peculiar hardships alleged to have been wrongly 
inflicted on American trade and shipping by the operation of those 
measures, his Majesty's Government desire to offer the following 
observations respecting the manner in which they have consistently 
endeavored to give practical effect to those assurances. 

2. It will be recalled that at the moment when his Majesty's Gov- 
ernment announced their measures against enemy commerce, they 
declared their intention to refrain altogether from the exercise of 
the right to confiscate ships or cargoes, which belligerents had 
always previously claimed in respect to breaches of blockade; that, 
under Article i of the enactment of March 11 it was expressly pro- 
vided that any person claiming to be interested in goods placed in the 
prize court in pursuance of the provision of that enactment, might 
forthwith issue a writ against the proper officer of the Crown, the 
object being to confer upon claimants the right to institute proceed- 
ings without waiting for the writ of the Procurator General, and 
thus to remove all possible cause of legitimate grievance on account 
of delay; and that, finally, a pacific assurance was given to the 
United States Government that the instructions to be issued by his 
Majesty's Government to the fleet and to the customs officials and 
executive officials concerned, would impress upon them the duty of 
acting with the utmost despatch consistent with the object in view 
and of showing in every case such consideration- for neutrals as 
might be compatible with that object, namely, to prevent vessels 
carrying goods for or coming from the enemy's territory. 

3. The above measures were all designed to alleviate the^ burdens 
imposed upon neutral sea-borne commerce in general. Various spe- 

* According to the letter of the American Ambassador transmitting the "lemo- 
randum, " it is not an answer to the principles set forth in the note . . ._ of March 
30 [No. 36], but merely an explanation of concrete cases and the regulations under 
which they are dealt with," See No. 6i. 



102 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

cial concessions, over and above those enumerated, have, moreover, 
been made in favor of United States citizens. 

4. Thus his Majesty's Government have acted as regards ship- 
ments of American cotton, in accordance with the provisions of an 
arrangement arrived at in direct collaboration with representatives 
of the American cotton interests. In accepting this scheme the 
principal representative of those interests described it as conceding 
all that American interests could properly ask. The provisions of the 
arrangement were, as the United States Ambassador is aware, as 
follows : 

" I. All cotton for which contracts of sale and freight engagements 
have already been made before the 2d March is to be allowed free 
(or bought at contract price if stopped), provided the ship sails not 
later than the 31st March. 

" 2. Similar treatment is to be accorded to all cotton insured before 
the 2d March, provided it is put on board not later than the i6th 
March. 

" 3. All shipments of cotton claiming the above protection are to 
be declared before sailing, and the documents produced to, and 
certificates obtained from, consular officers or other authority fixed 
by the Government." 

5. Considerable shipments of cotton have already been dealt with 
under this arrangement, and in certain cases the dates specified have 
been extended in favor of American shippers. The Board of Trade 
have already paid a sum exceeding 450,000 pounds sterling to various 
American claimants, and all claims are being and will continue to be 
paid as rapidly as they are presented and the proofs of title can be 
checked. If in some cases progress has been delayed, this has been 
due to the fact which has seriously embarrassed His Majesty's Gov- 
ernment — that a number of consignments, for which the American 
shippers had specifically invoked the protection of the arrangement, 
are now claimed by Swedish and Dutch firms, whose title of owner- 
ship, notwithstanding the action of the American shippers, appears 
in some cases to be valid, and in others has led to the issue of 
writs in the prize court. 

6. It has been explicitly acknowledged by the special representa- 
tives of the American claimants, who have been in constant and 
direct communication with the Board of Trade, that all the claims 
so far submitted under the cotton arrangement have been settled 
with the utmost promptitude, so soon as the production of the neces- 
sary documents by the claimants allowed of this being done. There 
is, at the present moment, no claim before his Majesty's Government 
that has not been paid, and the sums so paid over are already consid- 
erably in excess of the amounts realized by the sale of the goods. 

7. As regards the more general allegation of delay in dealing with 
cases of detained cargoes, the following facts and figures may be 
quoted : 

The total nurriber of vessels which, having cleared from United 
States ports since the initiation of the retaliatory measures against 
German trade, are still detained in United Kingdom ports is twenty- 
seven ; of this number eight are discharging cotton which his Maj- 
esty's Government has agreed to purchase under the above arrange- 
ment. Of the remaining nineteen vessels, seven are free to depart 
as soon as the items of their cargo placed in the prize court have been 
discharged. The other twelve, of which three only are American 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 103 

ships, are detained pending inquiries as to suspicious consignments, 
and particulars as to the dates and approximate causes of detention 
are furnished in the accompanying hst. It will be observed that 
eight have been detained for a period of less than a week, and three 
for a period of less than a fortnight, while the detention of one is due 
to the difficulties in regard to transit across Sweden and Russia. 

8. His Majesty's Government remain convinced that, on an im- 
partial review of the facts, it will be admitted that no arlMtrary 
interference with American interests has, in regard to cotton cargoes, 
occurred; while if due regard be paid to the enormous volume of 
American and neutral shipping which is continually engaged in the 
transatlantic trade, the figures and dates quoted in the preceding 
paragraph will emphasize the restricted nature of any interference 
which has taken place, and the close attention with which the officials 
concerned have adhered to their instructions to act in all cases with 
expedition and w^ith every possible consideration for neutrals. 

9. Since His Majesty's Government have been compelled to adopt 
their present measures against German commerce, they have given 
special consideration to the question of avoiding as far as possible 
unnecessary damage to the interests of neutrals in regard to the 
export of goods of German origin, and here again liberal concessions 
have been made to United States citizens. Under the rules enacted 
on the nth of March provision is made for the investigation of all 
neutral claims respecting such goods in the prize court, and it is 
obvious that these claims can receive due and equitable consideration 
most properly before a judicial tribunal. Nevertheless, in deference 
to the express desire of the United States Government, arrangements 
were made toward the end of March whereby United States citizens, 
who might desire to import goods of German origin via a neutral 
port, were enabled to produce proof of payment to His Majesty's 
Embassy at Washington. If such proof were deemed satisfactory. 
His Majesty's Government gave an undertaking that the goods con- 
cerned should not be interfered with in transit, and the American 
importer was freed from the necessity of submitting his claim to the 
prize court in London for adjudication. A few days later His Maj- 
esty's Government further agreed to recognize the neutral owner- 
ship of goods of enemy origin even if not paid for before the ist 
March, provided they were the subject of a f. o. b. contract of 
earlier date, and had arrived at a neutral port before the 15th March. 

10. Special treatment has also been accorded to cargoes of par- 
ticular products destined for the United States and stated to be in- 
dispensable for the industries of the country, and, in notes addressed 
to the United States Ambassador in April and May, undertakings 
were given not to interfere during transit with certain cargoes of 
dyestuffs, potash, and German beet seed. 

11. When it became apparent that large quantities of enemy goods 
were still passing out through neutral countries his Majesty's Gov- 
ernment felt it necessary to fix a definite date after which such ship- 
ments must cease to enjoy the special immunity, theretofore granted, 
from liability to being placed in the prize court. It had been observed 
that a large increase had taken place in the number of vessels saihng 
from neutral countries to America, and one of the principal lines 
of steamships advertised a daily in place of a weekly service. In 
such circumstances it appeared scarcely possible that goods of enemy 
origin bought and paid for prior to the ist March should not have 



104 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

already been shipped to their destination. First June was accord- 
ingly fixed as the date after which the privilege allowed in the case 
of such shipments should cease; but once more a special favor was 
granted by extending the date in exceptional cases to the 15th June. 

12. Importers in the United States having now had three months 
in which to clear off their purchases in enemy territory, his Maj- 
esty's Government trust that, in presence of the circumstances 
enumerated, the United States Government will acknowledge the 
great consideration which has been shown to American interests. 

13. Nevertheless a fresh appeal has now been made to his Maj- 
esty's Government that shipments of American-owned goods of 
enemy origin, if paid for before the beginning of March, should be 
allowed to be shipped without molestation after the 15th June. The 
appeal is based principally upon the contentions, (a) that insufficient 
time has already elapsed; (b) that no mention of a time Hmit is 
made in the enactment of the nth March; (c) that the proofs of 
ownership required by His Majesty's Government are of an exacting 
nature and involve much time for preparation. 

14. The first contention (a) has already been dealt with. As re- 
gards (b) and (c) it is true that the enactment of the nth March 
contains no mention of a time limit. But it seems to be overlooked 
that the time limit had been fixed only for the special immunity 
granted as an exception from that enactment. It was as a friendly 
concession to American interests that his Majesty's Government 
agreed to an investigation of claims outside the prize court. As for 
the exacting nature of the proofs required by his Majesty's Govern- 
ment, experience has shown that such proofs were necessary. 

15. In deference, however, to the renewed representations of the 
United States Ambassador, his Majesty's Government have given 
further directions that in all such cases, as may have been specially 
submitted through the British Embassy at Washington or to his Maj- 
esty's Government direct on or before June 15 and passed, the goods 
shall be allowed to proceed without interference, if shipped from a 
neutral port on the conditions already laid down, notwithstanding the 
fact that shipment may not have been made before June 15. 

16. His Majesty's Government will also be prepared hereafter to 
give special consideration to cases presented to them and involving 
particular hardships, if the goods concerned are required for neutral 
Governments or municipalities, or in respect of works or public util- 
ity, and where payment can be shown to have been made before 
March i, 1915. 

17. With the above exceptions, his Majesty's Government regret 
they cannot continue to deal through the diplomatic channel with 
individual cases, but they would again point out that special provi- 
sion is made for the consideration of such cases in the prize court. 

18. Complaints have not infrequently been made that undue delay 
occurs in dealing with American cargoes in the prize court. An in- 
teresting comment on this subject was made by the President of the 
prize court in the case of the Cargo ex-steamship Ogccchee on the 
14th instant. His lordship, according to the transcript from the 
official shorthand writer's notes, made the following observations: 

" It is a very extraordinary thing that, when the Crown are ready 
to go on the claimants come here and say, * We cannot proceed for 
six weeks.' Some day toward the end of last term I had a row of 
eminent counsel in front pressing me to fix a case at once. I fixed 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 105 

it very nearly at once — that is to say, the second day of the follow- 
ing term. They all came and said: 'We want an adjournment for 
six weeks.' " 

19. The Solicitor General hereupon remarked: "If I might say 
so on that, one of the reasons I applied to-day on hehalf of the Crown 
that the matter should he dealt with as soon as possible is for that 
very reason. There has been such a strong desire on the part of 
America and American citizens that there should be no delay, but 
one finds, in fact, the delay comes from there." 

20. The President then stated : " I know that. I do not know 
what the explanation is, but I am anxious that there should be no 
delay." 

21. It is true that a number of cases, principally relating to cargoes 
which, though ostensibly consigned to a person in a neutral country, 
are in reality believed to be destined for the enemy, have been pend- 
ing in the prize court for some time. The United States Government 
are aware that most of these cargoes consist of meat and lard, and 
that much of the delay in bringing these cargoes to adjudication was 
due to the fact that negotiations were being carried on for many 
weeks with a representative of the principal American meat packers, 
for an amicable settlement out of court. When at length, owing to 
the failure of the negotiations, his Majesty's Government decided 
that they would continue the prize court proceedings and had at the 
request of the claimants fixed the earliest possible date for the hear- 
ing, counsel for the latter asked for an adjournment in their inter- 
ests, despite the fact that the Crown was, by his own admission, 
ready to proceed. 

22. His Majesty's Government are earnestly desirous of removing 
all causes of avoidable delay in dealing with American cargoes and 
vessels which may be detained, and any specific inquiries or repre- 
sentations which may be made by the United States Government in 
regard to particular cases will always receive the most careful con- 
sideration, and all information which can be afforded without prej- 
udice to prize court proceedings will be readily communicated, but 
they can scarcely admit that on the basis of actual facts, any sub- 
stantial grievance on the part of American citizens is justified or can 
be sustained, and they, therefore, confidently appeal to the opinion 
of the United States Government as enlightened by this memorandum. 

{The Nczv York Times, June 25, 191 5.) 

No. 55. Third American note, June 24, 1915, in regard to the 
" William P. Frye." * 

The Secretary of State to the American Ambassador at Berlin. 

You are instructed to present the following note to the German 
Minister of Foreign Affairs : 

I have the honor to inform your Excellency that I duly com- 
municated to my Government your note of the 7th instant on the 
subject of the claim presented in my note of April 3 last on behalf 
of the owners and captain of the American sailing vessel William P. 
Frye in consequence of her destruction by the German auxdiary 
cruiser Prins Eitel Friedrich. 

In reply I am insft-ucted by my Government to say that it has 
carefully considered the reasons given by the Imperial German Gov- 

* See Nos. 37, 39, 43 and 52. 



io6 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

eminent for urging that this claim should be passed upon by the 
German prize court instead of being settled by direct diplomatic 
discussion between the two Governments, as proposed by the Govern- 
ment of the United States, and that it regrets to find that it cannot 
concur in the conclusions reached by the Imperial German Govern- 
ment. 

As pointed out in my last note to you on this subject, dated April 
30, the Government of the United States has considered that the 
only question under discussion was the method which should be 
adopted for ascertaining the amount of the indemnity to be paid 
under an admitted liability, and it notes with surprise that in addi- 
tion to this question the Imperial German Government now desires 
to raise some questions as to the meaning and effect of the treaty 
stipulations under which it has admitted its liability. 

If the Government of the United States correctly understands the 
position of the Imperial German Government as now presented, it is 
that the provisions of Article 13 of the Treaty of 1799 between the 
United States and Prussia, which is continued in force by the Treaty 
of 1828, justified the commander of the Prinz Eitel Fricdrich in sink- 
ing the William P. Frye, although making the Imperial German Gov- 
ernment liable for the damages suffered in consequence, and that 
inasmuch as the treaty provides no specific method for ascertaining 
the amount of indemnity to be paid, that question must be submitted 
to the German prize court for determination. 

The Government of the United States, on the other hand, does not 
find in the treaty stipulation mentioned any justification for the 
sinking of the Fryc, and does not consider that the German prize 
court has any jurisdiction over the question of the amount of in- 
demnity to be paid by the Imperial German Government on account 
of its admitted liability for the destruction of an American vessel 
on the high seas. 

You state in your note of the 7th instant, that Article 13 of the 
above-mentioned Treaty of 1799 " expressly reserves to the party at 
war the right to stop the carrying of contraband and to detain the 
contraband; it follows then that if it cannot be accompHshed in any 
other way the stopping of the supply may be in the extreme case 
effected by the destruction of the contraband and of the ship carry- 
ing it." 

The Government of the United States cannot concur in this con- 
clusion. On the contrary, it holds that these treaty provisions do 
not authorize the destruction of a neutral vessel in the circumstances. 
By its express terms the treaty prohibits even the detention of a 
neutral vessel carrying contraband if the master of the vessel is 
willing to surrender the contraband. Article 13 provides: "In the 
case supposed of a vessel stopped for articles of contraband, if the 
master of the vessel stopped will deliver out the goods supposed to be 
of contraband nature, he shall be permitted to do it, and the vessel 
shall not in that case be carried into any port, nor further detained, 
but shall be allowed to proceed on her voyage." 

In this case the admitted facts show that, pursuant to orders from 
the commander of the German cruiser, the master of the Frye 
undertook to throw overboard the cargo of that vessel, but that before 
the work of delivering out the cargo was finished the vessel with 
the cargo was sunk by order of the German commander. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 107 

For these reasons, even if it be assumed, as your Excellency has 
done, that the cargo was contraband, your contention that the de- 
struction of the vessel was justified by the provisions of Article 13, 
does not seem to be well founded. The Government of the United 
States has not thought it necessary in the discussion of this case to 
go into the question of the contraband or non-contraband character 
of the cargo. The Imperial German Government has admitted that 
this question makes no difference so far as its liability for damages 
is concerned, and the result is the same so far as the justification 
for the sinking of the vessel is concerned. As shown above, if we 
assume that the cargo was contraband, the master of the Frye should 
have been allowed to deliver it out, and the vessel should have been 
allowed to proceed on her voyage. 

On the other hand, if we assume that the cargo was non-contra- 
band, the destruction either of the cargo or the vessel could not be 
justified in the circumstances of this case under any accepted rule 
of international law. 

Attention is also called to the provisions of Article 12 of the Treaty 
of 1785 between the United States and Prussia, which, like Article 
13 of the Treaty of 1799, was continued in force by Article 12 of the 
Treaty of 1828. So far as the provisions of Article 12 of the Treaty 
of 1785 apply to the question under consideration, they are as fol- 
lows : 

" If one of the contracting parties should be engaged in war with 
any other power, the free intercourse and commerce of the subjects 
or citizens of the party remaining neutral with the belligerent pow- 
ers shall not be interrupted. On the contrary, in that case, as in full 
peace, the vessels of the neutral party may navigate freely to and 
from the ports and on the coasts of the belligerent parties, free 
vessels making free goods, in so much that all things shall be 
adjudged free which shall be on board any vessel belonging to the 
neutral party, although such things belong to an enemy of the other." 

It seems clear to the Government of the United States, therefore, 
that whether the cargo of the Frye is regarded as contraband or as 
noncontraband, the destruction of the vessel was,^ as stated in my 
previous communication on this subject, " a violation of the obliga- 
tions imposed upon the Imperial German Government under exist- 
ing treaty stipulations between the United States and Prussia." 

For these reasons the Government of the United States must dis- 
agree with the contention which it understands is now made by the 
Imperial German Government, that an American vessel carrying 
contraband may be destroyed without liability or accountability be- 
yond the payment of such compensation for damages as may be fixed 
by a German prize court. The issue thus presented arises on a dis- 
puted interpretation of treaty provisions, the settlement of which 
requires direct diplomatic discussion between the two Governments 
and cannot properly be based upon the decision of the German prize 
court, which is in no way conclusive or binding upon the Govern- 
ment of the United States. 

Moreover, even if no disputed question of treaty interpretation was 
involved, the admission by the Imperial German Government of its 
liability 'for damages for sinking the vessel would seem to make it 
unnecessary, so far Is this claim is concerned, to ask the prize court 
to decide " whether the destruction of the ship and cargo was legal, 



io8 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

and whether and under what conditions the property sunk was liable 
to confiscation," which, you state in your note dated June 7, are 
questions which should be decided by the prize court. In so far as 
these questions relate to the cargo, they are outside of the present 
discussion, because, as pointed out in my previous note to you on the 
subject dated April 30, '' the claim under discussion does not include 
damages for the destruction of the cargo." 

The real question between the two Governments is what reparation 
must be made for a breach of treaty obligations, and that is not a 
question which falls within the jurisdiction of a prize court. 

In my note on the subject, the Government of the United States 
requested that " full reparation be made by the Imperial German 
Government for the destruction of the William P. Fryc." Reparation 
necessarily includes an indemnity for the actual pecuniary loss sus- 
tained, and the Government of the United States takes this oppor- 
tunity to assure the Imperial German Government that such an in- 
demnity, if promptly paid, will be accepted as satisfactory reparation, 
but it does not rest with a prize court to determine what reparation 
should be made, or what reparation would be satisfactory to the 
Government of the United States. 

Your Excellency states in your note of June 7 that in the event 
the prize court should not grant indemnity in accordance with treaty 
requirements, the German Government would not hesitate to arrange 
for equitable indemnity, but it is also necessary that the Government 
of the United States should be satisfied with the amount of the in- 
demnity, and it would seem to be more appropriate and convenient 
that an arrangement for equitable indemnity should be agreed upon 
now, rather than later. The decision of the prize court, even on the 
question of the amount of indemnity to be paid, would not be bind- 
ing or conclusive on the Government of the United States. 

The Government of the United States also dissents from the view 
expressed in your note that " there would be no foundation for a 
claim of the American Government unless the prize courts should 
not grant indemnity in accordance with the treaty." The claim pre- 
sented by the American Government is for an indemnity for a vio- 
lation of a treaty, in distinction from an indemnity in accordance 
with the treaty, and therefore is a matter for adjustment by direct 
diplomatic discussion between the two Governments, and is in no 
way dependent upon the action of a German prize court. 

For the reasons above stated the Government of the United States 
cannot recognize the propriety of submitting the claim presented by 
it on behalf of the owners and captain of the Frye to the German 
prize court for settlement. 

The Government of the United States is not concerned with any 
proceedings which the Imperial German Government may wish to 
take on " other claims of neutral and enemy interested parties " which 
have not been presented by the Government of the United States, 
but which you state in your note of June 7 make prize court pro- 
ceedings in this case indispensable, and it does not perceive the 
necessity for postponing the settlement of the present claim pending 
the consideration of those other claims by the prize court. 

The Government of the United States, therefore, suggests that 
the Imperial German Government reconsider the subject in the light 
of these considerations, and, because of the objections against re- 
sorting to the prize court, the Government of the United States 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 109 

renews its former suggestion that an effort be made to settle this 
claim by direct diplomatic negotiations. 

Lansing. 
(The New York Times, June 2p, 191 5.) 

No. 56. Second German note, July 8, 19 15, regarding the 
loss of American lives and the injury to American commerce 
incidental to the naval warfare/'^ 

The Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to make the following reply to his 
Excellency Ambassador Gerard to the note of the loth ultimo re the 
impairment of American interests by the German submarine war: 

The Imperial Government learned with satisfaction from the note 
how earnestly the Government of the United States is concerned in 
seeing the principles of humanity realized in the present war. Also 
this appeal finds ready echo in Germany, and the Imperial Govern- 
ment is quite willing to permit its statements and decisions in the 
present case to be governed by the principles of humanity just as it 
has done always. 

The Imperial Government welcomed with gratitude when the Amer- 
ican Government, in the note of May 15, itself recalled that Germany 
had always permitted itself to be governed by the principles of progress 
and humanity in dealing with the law of maritime war. 

Since the time when Frederick the Great negotiated with John 
Adams, Benjamin Franklin, and Thomas Jefferson the Treaty of 
Friendship and Commerce of September 9, 1785, between Prussia and 
the Republic of the West, German and American statesmen have, in 
fact, always stood together in the struggle for the freedom of the 
seas and for the protection of peaceable trade. 

In the international proceedings which since have been conducted 
for the regulation of the laws of maritime war, Germany and America 
have jointly advocated progressive principles, especially the abolish- 
ment of the right of capture at sea and the protection of the interests 
of neutrals. 

Even at the beginning of the present war the German Government 
immediately declared its willingness, in response to proposals of the 
American Government, to ratify the Declaration of London and 
thereby subject itself in the use of its naval forces to all the restric- 
tions provided therein in favor of neutrals. 

Germany likewise has been always tenacious of the principle that 
war should be conducted against the armed and organized forces of 
an enemy country, but that the enemy civilian population must be 
spared as far as possible from the measures of war. The Imperial 
Government cherishes the definite hope that some way will be found 
when peace is concluded, or perhaps earlier, to regulate the law of 
maritime war in a manner guaranteeing the freedom of the seas, and 
will welcome it with gratitude and satisfaction if it can work hand 
in hand with the American Government on that occasion. 

If in the present war the principles which should be the ideal of 
the future have been traversed more and more, the longer its duration, 
the German Government has no guilt therein.. It is known to the 
American Government how Germany's adversaries, by completely 
paralyzing peaceable traffic between Germany and neutral countries, 

* See Nos. 46, 50, 51, 53- 



no THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

have aimed from the very begimiing and with increasing lack of 
consideration at the destruction not so much of the armed forces as 
the Hfe of the German nation, repudiating in doing so all the rules 
of international law and disregarding all rights of neutrals. 

On November 3, 1914, England declared the North Sea a war area, 
and by planting poorly anchored mines and by the stoppage and cap- 
ture of vessels, made passage extremely dangerous and difficult for 
neutral shipping, thereby actually blockading neutral coasts and ports 
contrary to all international law. Long before the beginning of sub- 
marine war England practically completely intercepted legitimate 
neutral navigation to Germany also. Thus Germany was driven to 
a submarine war on trade. 

On November 14, 1914, the English Premier declared in the House 
of Commons that it was one of England's principal tasks to prevent 
food for the German population from reaching Germany via neutral 
ports. Since March i England has been taking from neutral ships 
without further formality all merchandise proceeding to Germany, 
as well as all merchandise coming from Germany, even when neutral 
property. Just as it was also with the Boers, the German people is 
now to be given the choice of perishing from starvation with its 
women and children or of relinquishing its independence. 

While our enemies thus loudly and openly proclaimed war without 
mercy until our utter destruction, we were conducting a war in self- 
defense for our national existence and for the sake of peace of an 
assured permanency. We have been obliged to adopt a submarine 
warfare to meet the declared intentions of our enemies and the method 
of warfare adopted by them in contravention of international law. 

With all its efforts in principle to protect neutral life and property 
from damage as much as possible, the German Government recog- 
nized unreservedly in its memorandum of February 4 that the inter- 
ests of neutrals might suffer from the submarine warfare. However, 
the American Government will also understand and appreciate that in 
the fight for existence, which has been forced upon Germany by its 
adversaries and announced by them, it is the sacred duty of the Im- 
perial Government to do all within its power to protect and save the 
lives of German subjects. If the Imperial Government were derelict 
in these its duties, it would be guilty before God and history of the 
violation of those principles of highest humanity which are the founda- 
tion of every national existence. 

The case of the Lusitania shows with horrible clearness to what 
jeopardizing of human lives the manner of conducting war employed 
by our adversaries leads. In the most direct contradiction of inter- 
national law all distinctions between merchantmen and war vessels 
have been obliterated by the order to British merchantmen to arm 
themselves and to ram submarines, and the promise of rewards there- 
for, and neutrals who use merchantmen as travelers thereby have 
been exposed in an increasing degree to all the dangers of war. 

If the Commander of the German submarine which destroyed the 
Lusitania had caused the crew and passengers to take to the boats 
before firing a torpedo this would have meant the sure destruction of 
his own vessel. After the experiences in sinking much smaller and 
less seaworthy vessels it was to be expected that a mighty ship like 
the Lusitania would remain above water long enough, even after the 
torpedoing, to permit passengers to enter the ship's boats. Circum- 
stances of a very peculiar kind, especially the presence on board of 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA in 

large quantities of highly explosive materials defeated this expecta"- 
tion. 

In addition it may be pointed out that if the Lusitania had l)een 
spared, thousands of eases of munitions would have been sent to Ger- 
many's enemies and thereby thousands of German mothers and chil- 
dren robbed of breadwinners. 

In the spirit of friendship wherewith the German nation has been 
imbued toward the Union (United States) and its inhabitants since 
the earliest days of its existence, the Imperial Government will always 
be ready to do all it can during the present war also to prevent the 
jeopardizing of lives of American citizens. 

The Imperial Government, therefore, repeats the assurances that 
American ships will not be hindered in the prosecution of legitimate 
shipping and the lives of American citizens in neutral vessels shall 
not be placed in jeopardy. 

In order to exclude any unforeseen dangers to American passenger 
steamers, made possible in view of the conduct of maritime war by 
Germany's adversaries, German submarines will be instructed to per- 
mit the free and safe passage of such passenger steamers when made 
recognizable by special markings and notified a reasonable time in 
advance. The Imperial Government, however, confidently hopes that 
the American Government will assume to guarantee that these vessels 
have no contraband on board, details of arrangements for the un- 
hampered passage of these vessels to be agreed upon by the naval 
authorities of both sides. 

In order to furnish adequate facilities for travel across the Atlantic 
for American citizens, the German Government submits for consid- 
eration a proposal to increase the number of available steamers by 
installing in passenger service a reasonable number of neutral steam- 
ers under the American flag, the exact number to be agreed upon 
under the same condition as the above-mentioned American steamers. 

The Imperial Government believes it can assume that in this man- 
ner adequate facilities for travel across the Atlantic Ocean can be 
afiforded American citizens. There would, therefore, appear to be 
no compelling necessity for American citizens to travel to Europe in 
time of war on ships carrying an enemy flag. In particular the 
Imperial Government is unable to admit that American citizens can 
protect an enemy ship through the mere fact of their presence on 
board. 

Germany merely followed England's example when she declared 
part of the high seas an area of war. Consequently, accidents suffered 
by neutrals on enemv ships in this area of war cannot well be judged 
differently from accidents to which neutrals are at all times exposed 
at the seat of war on land, when tiiey betake themselves into danger- 
ous localities in spite of previous warnings. If, however, it should 
not be possible for the American Government to acquire an adequate 
number of neutral passenger steamers, the Imperial Government is 
prepared to interpose no objections to the placing under the Ameri- 
can flag by the American Government of four enemy passenger steam- 
ers for passenger traffic between North America and England. As- 
surances of " free and safe " passage for American passenger steamers 
would then extend tg apply under the identical pro-conditions to these 
formerlv hostile passenger steamers. 

The President of the United States has declared his readiness, in 
|a way deserving of thanks, to communicate and suggest proposals to 



112 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

the Government of Great Britain with particular reference to the 
alteration of maritime war. The Imperial Government will always 
be glad to make use of the good offices of the President, and hopes 
that his efforts in the present case as well as in the direction of the 
lofty ideal of the freedom of the seas, will lead to an understanding. 

The undersigned requests the Ambassador to bring the above to 
the knowledge of the American Government, and avails himself of 
the opportunity to renew to his Excellency the assurance of his most 
distinguished consideration. 

Von Jagow. 
(The New York Times, July lo, 191 5.) 

No. 57. Summary of American " caveat," July 14, 1915, 
against British prize court procedure. 

The Secretary of State to the American Ambassador at London. 

In view of differences which are understood to exist between the 
two Governments as to the principles of law applicable in prize court 
proceedings in cases involving American interests, and in order to 
avoid any misunderstanding as to the attitude of the United States 
in regard to such proceedings, you are instructed to inform the Brit- 
ish Government that, in so far as the interests of American citizens 
are concerned, the Government of the United States will insist upon 
their rights under the principles and rules of international law, as 
hitherto estabhshed, governing neutral trade in time of war, without 
limitation or impairment by Orders in Council or other municipal 
legislation by the British Government, and will not recognize the 
validity of prize court proceedings taken under restraints imposed by 
British municipal law in derogation of the rights of American citizens 
under international law. 

{The New York Times, August 4, 191 5.) 

No. 58. Paraphrase of American note, July 15, 19 15, pro- 
testing against the seizure of the cargo of the " Neches." 

The Secretary of State to the American Ambassador at London. 

Ambassador Page is informed that it has been brought to the atten- 
tion of the department that the steamship Ncches, of American regis- 
ter, sailing from Rotterdam for the United States, carrying a general 
cargo, after being detained at the Downs, was brought to London, 
where it was required by the British authorities to discharge cargo, 
the property of American citizens. 

It appears that the ground advanced to sustain this action is that 
the goods originated, in part at least, in Belgium, and fall, therefore, 
within the provisions of Paragraph 4 of the Order in Council of 
March 11, which stipulates that every merchant vessel sailing from 
a port other than a German port, carrying goods of enemy origin, 
may be required to discharge such goods in a British or allied port. 

Ambassador Page is instructed in this case to reiterate the position 
of the Government of the United States as set forth in the depart- 
ment's instruction of March 30, 1915, with respect to the Order in 
Council mentioned, the international invalidity of which the Govern- 
ment of the United States regards as plainly illustrated by the present 
instance of the seizure of American-owned goods passing from the 
neutral port of Rotterdam to a neutral port of the United States, 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 113 

merely because the goods came originally from territory in the posses- 
sion of an enemy of Great Britain. 

Mr. Page is also instructed to inform the Foreign Office that the 
legality of this seizure cannot be admitted and that, in the view of 
the Government of the United States, it violates the right of the 
citizens of one neutral to trade with those of another, as well as with 
those of belligerents, except in contraband or in violation of a legal 
blockade of an enemy seaport ; and that the right of American owners 
of goods to bring them out of Holland, in due course, in neutral ships 
must be insisted upon by the United States, even though such goods 
may have come originally from the territories of enemies of Great 
Britain. He is directed further to insist upon the desire of this Gov- 
ernment that goods taken from the Ncchcs, which are the property of 
American citizens, should be expeditiously released to be forwarded to 
their destination, and to request that he be advised of the British 
Government's intended course in this matter at the earliest moment 
convenient to that Government. 

(The New York Times, August 4, IQJ.5.) 

No. 59. German memorandum, July 15, 191 5, in regard to 
the " Nebraskan." 

The Minister for Foreign Affairs to the American Ambassador. 

The German Government received from newspaper reports the in- 
telligence that the American steamer Nebraskan had been damaged 
by a mine or torpedo on the southwest coast of Ireland. It therefore 
started a thorough investigation of the case without delay, and from 
the result of the investigation it has become convinced that the dam- 
age to the Nebraskan was caused by an attack by a submarine. 

On the evening of May 25 last the submarine met a steamer bound 
westward without a flag and no neutral markings on her freeboard, 
about 65 nautical miles west of Fastnet Rock. No appliance of any 
kind for the illumination of the flag or markings was to be seen. In 
the twilight, which had already set in, the name of the steamer was 
not visible from the submarine. Since the commander of the sub- 
marine was obliged to assume from his wide experience in the area 
of maritime war that only English steamers, and no neutral steamers, 
traversed the war area without flag and markings, he attacked the 
vessel with a torpedo, in the conviction that he had an enemy vessel 
before him. Some time after the shot the commander saw that the 
vessel had in the meantime hoisted the American flag. As a conse- 
quence, he, of course, refrained from any further attack. Since the 
vessel remained afloat, he had no occasion to concern himself further 
with the boats which had been launched. 

It results from this that without a doubt that attack on the steamer 
Nebraskan was not meant for the American flag, nor is it traceal)le 
to any fault on the part of the commander of the German submarine, 
but is to be considered an unfortunate accident. The German Gov- 
ernment expresses its regret at the occurrence to the Government of 
the United States of America and declares its readiness to make. com- 
pensation for the damage thereby sustained by American citizens. 
{The New York Times, July 16, 191 5.) 



Lr4 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

No. 60. Third American note, July 21, 1915, regarding the 
loss of American lives and the injury to American commerce 
incidental to the naval warfare.* 

The Secretary of State to the American Ambassador at Berlin. 

You are instructed to deliver textually the following Note to the 
Minister for Foreign Affairs: 

The note of the Imperial German Government dated the 8th of 
July, 191 5, has received the careful consideration of the Government 
of the United States, and it regrets to be obliged to say that it has 
found it very unsatisfactory, because it fails to meet the real differ- 
ences between the two Governments, and indicates no way in which 
the accepted principles of law and humanity may be applied in the 
grave matter in controversy, but proposes, on the contrary, arrange- 
ments for a partial suspension of those principles which virtually set 
them aside. 

The Government of the United States notes with satisfaction that 
the Imperial German Government recognizes without reservation 
the validity of the principles insisted on in the several communica- 
tions which this Government has addressed to the Imperial German 
Government with regard to its announcement of a war zone and the 
use of submarines against merchantmen on the high seas — the prin- 
ciple that the high seas are free, that the character and cargo of 
a merchantman must first be ascertained before she can lawfully be 
seized or destroyed, and that the lives of noncombatants may in no 
case be put in jeopardy unless the vessel resists or seeks to escape 
after being summoned to submit to examination, for a belligerent act 
of retaliation is per se an act beyond the law, and the defense of an 
act as retaliatory is an admission that it is illegal. 

The Government of the United States is, however, keenly disap- 
pointed to find that the Imperial German Government regards itself 
as in large degree exempt from the obligation to observe these prin- 
ciples, even where neutral vessels are concerned, by what it believes 
the policy and practice of the Government of Great Britain to be in 
the present war with regard to neutral commerce. The Imperial 
German Government will readily understand that the Government of 
th'^ United States cannot discuss the policy of the Government of 
Great Britain with regard to neutral trade except with that Govern- 
ment itself, and that it must regard the conduct of other belligerent 
Governments as irrelevant to any discussion with the Imperial Ger- 
man Government of what this Government regards as grave and un- 
justifiable violations of the rights of American citizens by German 
naval commanders. 

Illegal and inhuman acts, however justifiable they may be thought 
to be, against an enemy who is believed to have acted in contraven- 
tion of law and humanity, are manifestly indefensible when they 
deprive neutrals of their acknowledged rights, particularly when they 
violate the right to life itself. If a belligerent cannot retaliate against 
an enemy without injuring the lives of neutrals, as well as their prop- 
erty, humanity, as well as justice and a due regard for the dignity of 
neutral powers, should dictate that the practice be discontinued. If 
persisted in it would in such circumstances constitute an unpardonable 
offense against the sovereignty of the neutral nation affected. 

The Government of the United States is not unmindful of the 

* See Nos. 46, 50, 51, 53. 56 



^ 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 115 

extraordinary condillons created by this war or of the radical altera- 
tions of circumstance and method of attack produced by the use of 
instrumentalities of naval warfare which the nations of the world 
cannot have had in view when the existing rules of international law 
were formulated, and it is ready to make every reasonable allowance 
for these novel and unexpected aspects of war at sea; but it cannot 
consent to abate any essential or fundamental right of its people be- 
cause of a mere alteration of circumstance. The rights of neutrals 
in time of war are based upon principle, not upon expediency, and the 
principles are immutable. It is the duty and obligation of belligerents 
to find a way to adapt the new circumstances to them. 

The events of the past two months have clearly indicated that it is 
possible and practicable to conduct such submarine operations as have 
characterized the activity of the Imperial German Navy within the 
so-called war zone in substantial accord with the accepted practices 
of regulated warfare. The whole world has looked with interest and 
increasing satisfaction at the demonstration of that possibility by Ger- 
man naval commanders. It is manifestly possible, therefore, to lift 
the whole practice of submarine attack above the criticism which 
it has aroused and remove the chief causes of offense. 

In view of the admission of illegality made by the Imperial Gov- 
ernment when it pleaded th.e right of retaliation in defense of its acts, 
and in view of the manifest possibility of conforming to the estab- 
lished rules of naval warfare, the Government of the United States 
cannot believe that the Imperial Government will longer refrain from 
disavowing the wanton act of its naval commander in sinking the 
Lusitania or from offering reparation for the American lives lost, so 
far as reparation can be made for a needless destruction of human 
life by an illegal act. 

The Government of the United States, while not indifferent to the 
friendly spirit in which it is made, cannot accept the suggestion of the 
Imperial German Government that certain vessels be designated and 
agreed upon which shall be free on the seas now illegally proscribed. 
The very agreement would, by implication, subject other vessels to 
illegal attack, and would be a curtailment and therefore an abandon- 
ment of the principles for which this Government contends, and which 
in times of calmer counsels every nation would concede as of course. 

The Government of the United States and the Imperial German 
Government are contending for the same great object, have long 
stood together in urging the very principles upon which the Govern- 
ment of the United States now so solemnly insists. They are both 
contending for the freedom of the seas. The Government of the 
United States will continue to contend for that freedom, from what- 
ever quarter violated, without compromise and at any cost. It in- 
vites the practical co-operation of the Imperial German Government 
at this time, when co-operation may accomplish most and this great 
common o1)ject be most strikingly and effectively achieved. 

The Imperial German Government expresses the hope that this 
object may be in some measure accomplished even before the present 
war ends. It can be. The Government of the United States not 
only feels obliged to insist upon it, by whomsoever violated or ignored, 
in the protection oi its own citizens, but is also deeply interested in 
seeing it made practicable between the belligerents themselves, and 
holds'^itself ready at any time to act as the common friend who may 
be privileged to suggest a way. 



ii6 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

In the meantime the very value which this Government sets upon 
the long and unbroken friendship between the people and Govern- 
ment of the United States and the people and Government of the 
German nation impels it to press very solemnly upon the Imperial 
German Government the necessity for a scrupulous observance of 
neutral rights in this critical matter. Friendship itself prompts it to 
say to the Imperial Government that repetition by the commanders 
of German naval vessels of acts in contravention of those rights must 
be regarded by the Government of the United States, when they 
affect American citizens, as deliberately unfriendly. Lansing. 

(TJie New York Times, July 24, 1Q13.) 

No. 61. British note, July 23, 1915, replying to the Ameri- 
can note of March 30, in regard to British violation of neutral 
rights (No. 36). 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

1. On the 2d of April your Excellency handed to me a copy of a 
communication containing the criticisms of the United States Gov- 
ernment on the measures we have been constrained to take on account 
of the menace to peaceful commerce resulting from the German sub- 
marine policy. This communication has received the most careful 
consideration of his Majesty's Government. 

2. I fully appreciate the friendly spirit and the candor which are 
shown in the communication, and, replying in the same spirit, I trust 
that I may be able to convince your Excellency, and also the Admin- 
istration at Washington, that the measures we have announced are 
not only reasonable and necessary in themselves, but constitute no 
more than an adaptation of the old principles of blockade to the 
peculiar circumstances with which we are confronted. 

3. I need scarcely dwell on the obligation incumbent upon the 
Allies to take every step in their power to overcome their common 
enemy, in view of the shocking violation of the recognized rules and 
principles of civilized warfare of which he has been guilty during 
the present struggle. Your Excellency's attention has already been 
drawn to some of these proceedings in the memorandum which I 
handed to you on the 19th February, Since that time Lord Bryce's 
report, based on evidence carefully sifted by legal experts, describing 
the atrocities committed in Belgium ; the poisoning of wells in Ger- 
man Southwest Africa, the use of poisonous gases against the troops 
in Flanders, and, finally, the sinking of the Lusitania without any 
opportunity to passengers and noncombatants to save their lives, have 
shown how indispensable it is that we should leave unused no justi- 
fiable method of defending ourselves. 

4. Your Excellency w^ill remember that in my notes of the 13th 
and 15th March I explained that the allied Governments intended to 
meet the German attempt to stop all supplies of every kind from leav- 
ing or entering British or French ports by themselves intercepting 
goods going to or from Germany. I read the communication from 
your Excellency's Government not as questioning the necessity for 
our taking all the steps open to us to cripple the enemy's trade, but 
as directed solely to the question of the legitimacy of the particular 
measures adopted. 

5. In the various notes which I have received from your Excel- 



^ 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 117 

lencv the r,"ht of a belligerent to estal.lish a blocka<le of the enemy 
'p^nl Is^dlrutted, a right which >'- ohv.ou^.y no va^»= - ^„^^s^^^ 

--i^:c^l==e?^^:™:^lS4 

ports as easily as through ports ni 1"J.°« "f ^ ^'^^ f;,"of 'Icka in 

L?f 4rf:^t;'.e:^e rra^r: ^rz^^^ stm open to his 

^'^^rhU^ra contention which his Majest/s^Govern-^^^ fee. -l,h. 
to accept and which seems to them '"ff';^f'\^,'^^Zc unable to 

the circumstances render such an •'PP''^|'-'° °' The Government 
blockade the only ™eans of n^k-ng .t eKe v^^^ 
of the United States '"deed 'nturiates ,ts leadmess to ^^^ ^^^^^^ 

"the great changes w^'^have occurred in »« ':° yockade 

of naval warfare since the rules *'=5/°^fj;"J,""of do'se blocka.le, 

mines, and aircraft. . j ^d to the meas- 

6. The only question, then, ^hjh can arise in » ^,^^^^ 

ures resorted to for the purpose "« ""y'"»,^^ ,% ,,ords, they " con- 
extended lines is whether, to use y°" J^^™^'^/the rules of war " ; 
form to the spirit and pnnciples "f "l^ f ^^^^^ action which we have 
?;^iTin'ro"fa: rsTf^rnSSreitt'erflrence with neutral com- 
mit may be noted ^n^^-^:^:^^ "t'lZX^^'^ 
Jr the V,"''f^!':r:ome"f ooolS e o coasfune, a military opera- 
claring a blockade of ^o^f 3-000 m , , ^^ fi.st very small, 

tion for which the ""m'^«^^°*"'?5„ited States in that great struggle 
It was vital to the '^^'[f "^^ *%\i" he trade of the Southern States, 
that they should be able ^ ctit ott he ra ^^^^^ ^^^_.^^^^^ 

i:d%LtS:s\"ti\d%::b\tbratd without%orting the cotton 

-'^'^^'^^l^o'rt^^s^trarhe United States <:jndd only^;,^,^- ,^ 
blockade. The diffi<="ltl^\^°"iir'"f<,neutral territory afforded con- 
in part due to the fact ''»' ""g"^ '° ^^fa e" ,• , '^'= introduced into the 
venient centres from ^^ich contrabana _^^^^ ^^^^^^^.^^^ ^^^,,,, ,, 

territory of their «"^""^'^™;-7no doubt remember how, m order 
facilitated.. Your Exce ency w.l no ^^ ^^ contraband 

to meet this new difficulty the dpr 1 ^^ continuous voyage 

and blockade were developed anc^he do ^^^^^.^^^^ ^^^ ^,^^ 
was applied and enforced ™dc' XV^.'-^ched the neutral ports from 
territory were mtercepted before tney rea 

which they were to b-^ ,>-^f ^P";;'^;';, .,„„ the United States the neces- 
8. The difficulties which >mP«^[d uyo'i ^^,„,,,,„t akin to those 

sity of reshaping some of the old ruies 



ii8 THE PROTECTION OE NEUTRAL RIGHTS AT SEA 

with which the AUies are now faced in deaUng with the trade of their 
enemy. Adjacent to Germany are various neutral countries which 
afford her convenient opportunities for carrying on her trade with 
foreign countries. Her own territories are covered by a network of 
railways and waterways, which enable her commerce to pass as con- 
veniently through ports in such neutral countries as through her own. 
A blockade limited to enemy ports would leave open routes by which 
every kind of German commerce could pass almost as easily as through 
the ports in her own territory. Rotterdam is indeed the nearest out- 
let for some of the industrial districts of Germany. 

9. As a counterpoise to the freedom with which one belligerent 
may send his commerce across a neutral country without compro- 
mising its neutrality, the other belligerent may fairly claim to intercept 
such commerce before it has reached, or after it has left, the neutral 
State, provided, of course, that he can establish that the commerce 
with which he interferes is the commerce of his enemy and not com- 
merce which is bona fide destined for or proceeding from the neutral 
State. It seems, accordingly, that if it be recognized that a blockade 
is in certain cases the appropriate method of intercepting the trade 
of an enemy country, and if the blockade can only become effective 
by extending it to enemy commerce passing through neutral ports, 
such an extension is defensible and in accordance with principles 
which have met with general acceptance. 

10. To the contention that such action is not directly supported 
by written authority, it may be replied that it is the business of 
writers on international law to formulate existing rules rather than 
to offer suggestions for their adaptation to altered circumstances, 
and your Excellency will remember the unmeasured terms in which 
a group of prominent international lawyers of all nations condemned 
the doctrine which had been laid down by the Supreme Court of the 
United States in the case of the Springbok, a doctrine upheld by the 
Claims Commission at Washington in 1873. But the United States 
and the British Government took a broader view and looked below 
the surface at the underlying purpose, and the Government of this 
country, whose nationals were the sufferers by the extension and 
development of the old methods of blockade made by the United 
States during the civil war, abstained from all protest against the 
decisions by which the ships and their cargoes were condemned. 

11. What is really important in the general interest is that adapta- 
tions of the old rules should not be made unless they are consistent 
with the general principles upon which an admitted belligerent right 
is based. It is also essential that all unnecessary injury to neutrals 
should be avoided. With these conditions, it may be safely affirmed 
that the steps we are taking to intercept commodities on their way 
to and from Germany fully comply. We are interfering with no 
goods with which we should not be entitled to interfere by blockade 
if the geographical position and the conditions of Germany at present 
were such that her commerce passed through her own ports. We 
are taking the utmost possible care not to interfere with commerce 
genuinely destined for or proceeding from neutral countries. Further- 
more, we have tempered the severity with which our measures might 
press upon neutrals by not applying the rule, which was invariable 
in the old form of blockade, that ships and goods on their way to 
or from the blockaded area are liable to condemnation. 

12. The communication made by the United States Embassy on 



THE PROTECTION OE NEUTRAL RIGHTS AT SEA 119 

April 2 describes as a novel and qtute unprecedented feature of the 
blockade that it embraces many neutral ports and coasts and has the 
effect of barring access to them, it does not appear that our meas- 
ures can be properly so described. H we are successful in the efforts 
we are making to distinguish between the commerce of neutral and 
enemy countries there will be no substantial interference with the 
trade of neutral ports, except in so far as they constitute ports of 
access to and exit from the enemy territory. There are at this mo- 
ment many neutral ports which it would be mere affectation to regard 
as offering facilities only for the commerce of the neutral country 
in which they are situated, and the only commerce with which we 
propose to interfere is that of the enemy who seeks to make use of 
such ports for the purposes of transit to or from his own country. 

13. One of the earlier passages in your Excellency's memorandum 
w^as to the effect that the sovereignty of neutral nations in time of 
war suffers no diminution, except in so far as the practice and con- 
sent of civilized nations have limited it " by the recognition of cer- 
tain now clearly determined rights " which it is considered may be 
exercised by nations at war, and these it defines as the right of cap- 
ture and condemnation for unneutral service, for the carriage of 
contraband, and for breach of blockade. I may, however, be per- 
mitted to point out that the practice of nations on each of the three 
subjects mentioned has not at any time been uniform or clearly deter- 
mined, nor has the practice of any maritime nation always been con- 
sistent. 

14. There are various particulars in which the exaot method of 
carrying a blockade into effect has from time to time varied. The 
need of a public notification, the requisite standard of effectiveness, 
the locality of the blockading squadrons, the right of the individual 
ship to a preliminary warning that the blockade is in force, and the 
penalty to be inflicted on a captured blockade runner, are all subjects 
on which different views have prevailed in different countries and in 
which the practice of particular countries has been altered from time 
to time. The one principle which is fundamental and has obtained 
universal recognition, is that by means of blockade a belligerent is 
entitled to cut off, by effective means, the sea-borne commerce of his 
enemy. 

15. It is the same with contraband. The underlying principle is 
well established, but as to the details, there has been a wide variety 
of views. As for unneutral service — the very term is of such recent 
introduction that many writers of repute on international law do not 
mention it — it is possible, in the view of his Majesty's Government in 
these circumstances, to maintain that the right of a belligerent to 
intercept the commerce of his enemy is limited in the way suggested 
in your Excellency's communication. 

16. There are certain subsidiary matters dealt with in your Excel- 
lency's communication to which I think it w^ell to refer. Among 
the^e may be mentioned your citation of the Declaration of Paris, 
due, no doubt, to the words which occur in the memorandum sent by 
me 'to your Excellency on the ist of March, wherein it was stated 
that the allied Governments would hold themselves free to detain and 
take into port ships carrying goods of presumed enemy destination, 
ownership, or origin, and to our announcement that vessels might 
be required to discharge goods of enemy ownership as well as those 
of enemy origin or destination. 



120 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

17. It is not necessary to discuss the extent to which the second 
rule of the Declaration of Paris is affected by these measures or 
whether it could be held to apply at all as between Great Britain and 
the United States. In actual practice, however, we are not detaining 
goods on the sole ground that they are the property of an enemy. The 
purpose of the measures we are taking is to intercept commerce on its 
way from and to the enemy country. There are many cases in which 
proof that the goods were enemy property would afford strong evi- 
dence that they were of enemy origin or enemy destination, and it is 
only in such cases that we are detaining them. Where proof of 
enemy ownership would afford no evidence of such origin or destina- 
tion we are not in practice detaining the goods. 

18. His Majesty's Government have been gratified to observe that 
the measures which they are enforcing have had no detrimental effect 
on the commerce of the United States. Figures of recent months 
show that the increased opportunities afforded by the war for Amer- 
ican commerce have more than compensated for the loss of the Ger- 
man and Austrian markets. 

19. I trust that in the light of the above explanations it will be 
realized that the measures to which we have resorted have been not 
only justified by the exigencies of the case, but can be defended as 
in accordance with general principles which have commended them- 
selves to the Governments of both countries. I am glad to be able 
to assure your Excellency that we shall continue to apply these meas- 
ures with every desire to occasion the least possible amount of in- 
convenience to persons engaged in legitimate commerce. 

I have, &c. E. Grey. 

(The New York Times, August 4, 191 5.) 

No. 62. Third German note, July 30, 1915, in regard to the 
"William P. Frye." * 

Tlie Minister for Foreign Affairs to the American Ambassador. 

The undersigned has the honor to inform his Excellency, Mr. James 
W. Gerard, Ambassador of the United States of America, in reply 
to the note of the 26th ultimo. Foreign Office No. 3,990, on the subject 
of the sinking of the American merchant vessel William P. Frye by 
the German auxiliary cruiser Prince Eitel Friedrich, that the points 
of view brought out in the note have been carefully examined by 
the Imperial German Government. This examination has led to the 
following conclusions: 

The Government of the United States believes that it is incumbent 
upon it to take the position that the treaty rights to which America 
is entitled, as contained in Article 12 of the Prussian-American treaty 
of amity and commerce of September 10, 1785, and in Article 13 of 
the Prussian-American treaty of amity and commerce of July 11, 
1799, were violated by the sinking of the William P. Frye. It inter- 
prets these articles as meaning that a merchantman of the neutral 
contracting party carrying contraband cannot in any circumstances 
be destroyed by a warship of the belligerent contracting party, and 
that the sinking of the William P. Frye was, therefore, in violation of 
the treaty, even if her cargo should have consisted of contraband, 
which it leaves outside of the discussion. 

The German Government cannot accept this view. It insists as 

* See Nos. 37, 39, 43, 52, 55. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 121 

heretofore that the commander of the German auxiliary cruiser acted 
in the legal exercise of the right of control of trade in contrahand 
enjoyed by warships of belligerent nations, and that the treaty stipu- 
lations mentioned merely oblige the German Government to make 
compensation for the damage sustained by the American citizens con- 
cerned. 

It is not disputed by the American Government that according to 
general principles of international law a belligerent is authorized in 
sinking neutral vessels under almost any conditions for carrying con- 
traband. As is well known, these principles were laid down in Articles 
49 and 50 of the Declaration of London, and were recognized at that 
time by the duly empowered delegates of all the nations which par- 
ticipated in the conference, including the American delegates, to be 
declarative of existing international law (see preliminary clause of 
the Declaration of London) ; moreover, at the beginning of the pres- 
ent war the American Government proposed to the belligerent nations 
to ratify the Declaration of London and give its provisions formal 
validity also. 

The German Government has already explained in its note of April 
4 last for what reason it considers that the conditions justifying the 
sinking under international law were present in the case of the IVil- 
liarn P. Frye. The cargo consisted of conditional contraband, the 
destination of which for the hostile armed forces was to be presumed 
under the circumstances; no proof to overcome this presumption has 
been furnished. More than half the cargo of the vessel was contra- 
band, so that the vessel was liable to confiscation. The attempt to 
bring the American vessel into a German port would have greatly 
imperiled the German vessel in the given situation of the war, and at 
any rate practically defeated the success of her further operations. 
Thus the authority for sinking the vessel was given according to 
general principles of international law. 

There only remains then to be examined the question how far the 
Prussian-American treaty stipulations modify these principles of inter- 
national law. 

In this connection Article 12 of the Treaty of 1785 provides that 
in the event of a war between one of the contracting parties with 
another power, the free commerce and intercourse of the nationals 
of the party remaining neutral with the belligerent powers shall not be 
interrupted, but that on the contrary the vessel of the neutral party 
may navigate freely to and from the ports of the belligerent power 
even neutralizing enemy goods on board thereof. However, this 
article merely formulates general rules for the freedom of maritime 
intercourse and leaves the question of contraband untouched; the 
specific stipulations on this point are contained in the following article, 
which is materially identical with Article 13 of the Treaty of 1799 now 
in force. . , ,. , , , 

The plain intention of Article 13 is to establish a reasonable com- 
promise between the military interests of the belligerent contracting 
party and the commercial interests of the neutral party. On the one 
hand the belligerent party is to have the right to prevent the trans- 
portation of war supplies to his adversaries even when carried on 
vessels of the neutral party ; on the other hand, the commerce and 
navigation of the neutral party is to be interfered with as little as 
possible by the measure necessary for such prevention, and reason- 
able compensation is to be paid for any inconvenience or damage 



122 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

which may nevertheless ensue from the proceedings of the belligerent 
party. 

Article 13 recites the following means whereby the belligerent party 
can prevent the vessels of the neutral party from carrying war supplies 
to his adversary. The detention of the ship and cargo for such 
length of time as the belligerent may think necessary; furthermore, 
the taking over of the war stores for his own use, paying the full 
value of the same as ascertained at the place of destination. The 
right of sinking is not mentioned in the treaty, and is, therefore, 
neither expressly permitted nor expressly prohibited, so that on this 
point the party stipulations must be supplemented by the general rules 
of international law. From the meaning and spirit of the treaty it 
really appears out of the question that it was intended to expect of 
the belligerent that he should permit a vessel loaded with contraband, 
for example a shipment of arms and ammunition of decisive import- 
ance for the outcome of the war, to proceed unhindered to his enemy 
when circumstances forbid the carrying of the * * into port, if the 
general rules of international law allow sinking of the vessel. 

The remaining stipulations of Article 13 must likewise be consid- 
ered in this light ; they provide that the Captain of a vessel stopped 
shall be allowed to proceed on his voyage if he delivers out the con- 
traband to the warship which stopped his vessel. For such delivering 
out cannot, of course, be considered when the ensuing loss of time 
imperils either the warship herself or the success of her other opera- 
tions. In the case of the William P. Fryc the German commander 
at first tried to have matters settled by the delivery of contraband, 
but convinced himself of the impracticability of this attempt in that 
it would expose his ship to attack by whatever superior force of enemy 
war vessels pursuing him, and was accordingly obliged to determine 
upon the sinking of the Frye. Thus he did not exceed on this point 
the limits to which he was bound by Article 13. 

However, Article 13 asserts itself here to the extent that it founds 
the obligation to compensate the American citizens affected, whereas 
according to the general rules of international law the belligerent 
party does not need to grant compensation for a vessel lawfully sunk. 
For, if by Article 13, the mere exercise of right of highways makes 
the belligerent liable for compensation, this must apply a fortiori to 
the exercise of the right of sinking. 

The question whether the German commander acted legally was 
primarily a subject for the consideration of the German prize courts, 
according to general principles of international law as laid down, also 
in Article i of The Hague Convention for the establishment of an 
international prize court and in Article 51 of the Declaration of 
London. The German Government consequently laid the case of 
the William P. Frye before the competent prize court at Hamburg, 
as was stated in its note of the 7th ult. This court found by its 
judgment of the loth inst. that the cargo of the American vessel, 
William P. Frye, was contraband ; that the vessel could not be carried 
into port, and that the sinking was therefore justified; at the same 
time the court expressly recognized the validity of the Prussian- 
American treaty stipulations severally * * model for the relations be- 
tween the German Empire and America, so that the sinking of the 
ship and cargo, so far as American property, makes the German Em- 
pire liable for indemnity. The Prize Court was unable to fix the 

* * Omissions. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 123 

indemnity itself, since it had no data before it, failing the receipt of 
the necessary details from the parties interested. 

It will now be necessary to settle these points in a different way. 
The German Government suggests as the simplest way that each of 
the two Governments designate an expert and that the two experts 
jointly fix the amount of indemnity for the vessel and any American 
property which may have been sunk with her. The German Govern- 
ment will promptly pay the amount of indemnity thus ascertained ; 
it expressly declares, however, reverting to what has been stated 
above, that this payment does not constitute satisfaction for the 
violation of American treaty rights, but a duty or policy of this 
Government founded on the existing treaty stipulations. 

Should the American Government not agree to this manner of 
settling the matter, the German Government is prepared to submit 
the difference of opinion as being a question of the interpretation 
of the existing treaties between Germany and the United States to 
the tribunal at The Hague, pursuant to Article 38 of The Hague 
Convention for the pacific settlement of international disputes. 

The undersigned begs to suggest that the Ambassador bring the 
above to the attention of his Government and avails himself, &c. 

VoN Jagow. 

(The Nczv York Times, August 5, 19 15.) 

No. 63. British note, July 31, 1915, replying to No. 57. 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

Your Excellency: (i) I have the honor to acknowledge the 
receipt of the note dated i6th inst., in which you were good enough 
to communicate to me for the information of his Majesty's Govern- 
ment the opinion held by the Government of the United States, that, 
in view of differences which they understand to exist between the 
two countries as to the principles of law appHcable in cases before 
the Prize Court, they could not recognize the validity of proceedings 
taken in his Majesty's Prize Court in derogation of the rights of 
citizens of the United States. 

(2) I do not understand to what divergence of views as to the 
principles of law applicable in cases before the Prize Court the 
Government of the United States refers, for I am not aware of any 
differences existing between the two countries as to the principles 
of law applicable in cases before such courts. 

3. British prize courts, according to the ancient form of com- 
mission under which they sit, are to determine cases which come 
before them, according to the course of Admiralty and the law of 
nations and the statutes of rules and regulations for the tune bemg 
in force in that behalf. 

As to the principles applied by the American prize courts, I note 
that in the case of the Amy Warwick (2 Sprague. 123) it was held 
that prize courts are subject to the instructions of their own sovereign 
In the absence of such instructions their jurisdiction and rules of 
decision are to be ascertained by reference to the known powers of 
such tribunals and tl^e principles by which they are governed under 
the public law and the practice of nations. It would appear, there- 
fore, that the principles applied by the prize courts of the two coun- 
tries are identical. 



124 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

4. As illustrating further the attitude adopted by the judges of 
British prize courts toward these two sources of law, the municipal 
legislation of its sovereign on the one hand and the principles of 
international law on the other, I should like to refer your Excellency 
to a classical passage in the judgment of Lord Stowell, in the case of 
the Fox, in which that famous Judge observed in the course of the 
discussion: 

" A question has been stated : What would be the duty of the 
court under Orders in Council that were repugnant to the law of 
nations? It has been contended on one side that the court would 
at all events be bound to enforce the Orders in Council, on the other 
that the court would be bound to apply the rule of the law of nations 
adapted to the particular case, in disregard of the Orders in Council. 

" This court is bound to administer the law of nations to the 
subjects of other countries in the different relations in which they 
may be placed toward this country and its Government. That is 
what others have a right to demand for their subjects, and to com- 
plain if they receive it not. This is its unwritten law, evidenced in 
the course of its decisions and collected from the common usage of 
civilized States. At the same time, it is strictly true that by the 
Constitution of this country the King in Council possesses legislative 
rights over this court and has power to issue orders and instructions, 
which it is bound to obey and enforce; and these constitute the writ- 
ten law of this court. 

" These two propositions, that the court is bound to administer the 
law of nations and that it is bound to enforce the King's Orders in 
Council, are not at all inconsistent with each other, because these 
orders and instructions are presumed to conform themselves, under 
the given circumstances, to the principles of its unwritten law. They 
are either directory applications of those principles to the cases indi- 
cated in them — cases which, with all the facts and circumstances 
belonging to them and which constitute their legal character, could be 
but imperfectly known to the court itself; or they are positive regu- 
lations, consistent with these principles, applying to matters which 
require more exact and definite rules than those general principles 
are capable of furnishing. 

" The constitution of this court, relatively to the legislative power 
of the King in Council, is analogous to that of the Courts of Common 
Law relatively to that of the Parliament of this Kingdom. These 
courts have their unwritten law, the approved reasons, principles of 
natural reason and justice; they have likewise the written or statute 
law in Acts of Parliament, which are directory applications of the 
same principles to particular subjects or positive regulations consistent 
with them upon matters which would remain too much at large if 
they were left to the imperfect information which the courts could 
extract from mere general speculations. 

" What would be the duty of the individuals who preside in these 
courts if required to enforce an Act of Parliament which contra- 
dicted those principles is a question which, I presume, they would not 
entertain a priori because they will not entertain a priori the suppo- 
sition that any such will arise. In like manner this court will not let 
itself loose into speculations as to what would be its duty under such 
an emergency; because it cannot, without extreme indecency, pre- 
sume that any such emergency will happen. And it is the less disposed 
to entertain them because its own observation and experience attest 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 125 

the general conformity of such orders and instructions to its princi- 
ples of unwritten law." 

5. The above passage has recently been quoted and adopted by the 
President of the prize court in the case of the Zaniora, in which Sir 
S. Evans said: "1 make bold to express the hope and belief that 
the nations of the world need not be apprehensive that Orders in 
Council will emanate from the Government of this country in such 
violation of the acknowledged laws of nations that it is conceivable 
that our prize tribunals, holding the law of nations in reverence, 
would be called upon to disregard and refuse obedience to the provi- 
sions of such orders." 

6. In the note wdiich I handed to your Excellency on the 23d of 
July, I endeavored to convince the Government of the United States, 
and I trust with success, that the measures that we have felt our- 
selves compelled to adopt, in consequence of the numerous acts com- 
mitted by our enemies in violation of the laws of war and the dic- 
tates of humanity, are consistent with the principles of international 
law. The legality of these measures has not yet formed the subject 
of a decision of the prize court; but I wish to take this opportunity 
of reminding your Excellency that it is open to any United States 
citizen whose claim is before the prize court to contend that any Order 
in Council which may affect his claim is inconsistent with the prin- 
ciples of international law, and is, therefore, not binding upon the 
court. If the prize court declines to accept his contentions, and if, 
after such a decision has been upheld on appeal by the Judicial 
Committee of his Majesty's Privy Council, the Government of the 
United States of America consider that there is serious ground for 
holding that the decision is. incorrect and infringes the rights of their 
citizens, it is open to them to claim that it should be subjected to re- 
view by an international tribunal. 

7. This principle, that the decisions of the national prize courts 
may properly be subjected to international review, was conceded by 
Great Britain in Article VII of the Jay treaty of 1793 and by the 
United States of America under the Treaty of Washington of 1871. 
Your Excellency will no doubt remember that certain cases (collec- 
tively known as the " Matamoros cases") were submitted to the 
commission established under Articles XII-XVII of the Treaty of 
Washington. In each of these cases proceedings in prize had been 
instituted in the prize courts of the United States, and in each case the 
judgment of the Supreme Court, the court of last resort in cases of 
prizes, had been obtained. The United States filed a demurrer in 
these cases, alleging that, as they had been heard by the prize courts 
of the United States of original and appellate jurisdiction, the decision 
of the appellate court was final, and no claim based upon it could be 
made before the commission. The demurrer was unanimously over- 
ruled and the cases heard, and the agent of the United States, in 
his reports of the proceedings of the commission, stated that he, per- 
sonally, maintained no doubt of the jurisdiction of the commission 
as an international tribunal to review the decisions of the prize courts 
of the United States where the parties alleging themselves aggrieved 
had prosecuted their claims by appeals to the court of last resort ; 
as this jurisdiction,* however, had been sometimes questioned, he 
deemed it desirable that a formal adjudication by the commission 
should be held upon this question. 

8. The same principle was accepted both by the United States 



126 THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Government and his Majesty's Government in 1907 in connection 
with the proposed establishment of an international prize court, 
although certain constitutional difficulties have led the United States 
Government to propose that the right of recourse to the international 
prize court in connection with a decision of the Supreme Court of 
the United States should take the form of a direct claim for com- 
pensation. 

9. It is clear, therefore, that both the United States Government 
and his Majesty's Government have adopted the principle that the 
decisions of a national prize court may be open to review if it is held 
in the prize court and in the Judicial Committee of the Privy Coun- 
cil, on appeal, that the orders and instructions issued by his Majesty's 
Government in matters relating to prize are in harmony with the 
principles of international law; and, should the Government of the 
United States unfortunately feel compelled to maintain a contrary 
view, his Majesty's Government will be prepared to concert with the 
United States Government in order to decide upon the best way of 
applying the above principle to the situation which would then have 
arisen. I trust, however, that the defense of our action, which I 
have already communicated to your Excellency, and the willingness 
of his Majesty's Government (which has been shown in so many 
instances), to make reasonable concessions to American interests, will 
prevent the necessity for such action arising. 

10. In any case, I trust that the explanations given above will re- 
move the misapprehension under which I cannot but feel the Govern- 
ment of the United States are laboring as to the principles applied 
by British prize courts in dealing with the cases which come before 
them. 

I have, &c., E. Grey. 

(The Nczu York Times, August 4, 191 5.) 

No. 64. British note, July 31, 19 15, replying to No. 58. 

The Secretary of State for Foreign Affairs to the American Am- 
bassador. 

The note which your Excellency addressed to me on the 17th inst. 
respecting the detention of the cargo of the steamship Neches has, I 
need hardly say, received the careful attention of his Majesty's Gov- 
ernment. 

The note which I had the honor to send to your Excellency on the 
23d instant has already explained the view of his Majesty's Govern- 
ment on the legal aspect of the question, though it was prepared 
before your Excellency's communication of the 17th had been received, 
and, pending consideration by the Government of the United States 
of the views and arguments set forth in the British note of the 23d, 
it is unnecessary for me to say more on the question of right or of law. 

There is, however, one general observation that seems relevant to 
the note from your Excellency's respecting the cargo of the Neches. 

It is the practice of the German Government, in the waters through 
which the Neches was passing, to sink neutral as well as British 
merchant vessels, irrespective of the destination of the vessel or origin 
of the cargo, and without proper regard or provision for the safety 
of passengers or crews, many of whom have lost their lives in con- 
sequence. There can be no question that this action is contrary to 
the recognized and settled rules of international law, as well as to 
the principles of humanity. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 127 

His Majesty's Government, on the other hand, have adhered to the 
rule of visit and search, and have observed the obHgation to bring 
into port and submit to a prize court any ships or cargoes with regard 
to which they think they have a good case for detention or for con- 
demnation as contraband. 

His Majesty's Government are not aware, except from the published 
correspondence between the United States and Germany, to what 
extent reparation has been claimed from Germany by neutrals for loss 
of ships, lives, and cargoes, nor how far these acts have l)een the 
subject even of protest by the neutral Governments concerned. 

While those acts of the German Government continue, it seems 
neither reasonable nor just that his Majesty's Government should be 
pressed to abandon the rights claimed in the British note of the 23d 
and to allow goods from Germany to pass freely through waters 
effectively patroled by British ships of war. 

If, however, it be alleged that, in particular cases and special cir- 
cumstances, hardships may be inflicted on citizens of neutral coun- 
tries, his Majesty's Government are ready in such cases to examine 
the facts in a spirit of consideration for the interest of neutrals, and 
in this spirit they are prepared to deal with the cargo of the Ncches, 
to which your Excellency has called attention, if it is held that the 
particular circumstances of this case fall within this category. 

[I have, &c., E. Grey.] 

{The New York Times, August 4, 191 5.) 

No. 65. Fourth American note, August 16, 191 5, in regard 
to the " William P. Frye." * 

The Secretary of State to the American Ambassador at Berlin. 

You are instructed to present the following note to the German 
Minister for Foreign Affairs : 

Under instructions from my Government, I have the honor to in- 
form your Excellency, in reply to your note of July 30 in regard to 
the claim for reparation for the sinking of the William P. Frye, that 
the Government of the United States learns with regret that the 
objections urged by it against the submission of this case to the prize 
court for decision have not commended themselves to the Imperial 
German Government, and it equally regrets that the reasons presented 
by the Imperial German Government for submitting this case to the 
prize court have failed to remove the objections of the Government 
of the United States to the adoption of that course. As this dis- 
agreement has been reached after the full presentation of the views 
of both Governments in our previous correspondence, a further 
exchange of views on the questions in dispute would doubtless be un- 
profitable, and the Government of the United States therefore wel- 
comes your Excellency's suggestion that some other way should be 
found for settling this case. 

The two methods of settlement proposed as alternative suggestions 
in your Excellency's note have been given careful consideration, and 
it is believed that if they can be combined so that they may both be 
adopted they will furnish a satisfactory basis for the solution of the 
questions at issue. • , , , , .. 

The Government of the United States has already expressed its 
desire that the question of the amount of indemnity to be paid by the 

* See Nos. 37, 39, 43, 5^, 55, ^^^ 



12^ THE PROTECTION OF NEUTRAL RIGHTS AT SEA 

Imperial German Government under its admitted liability for the 
losses of the owners and Captain on account of the destruction of the 
Frye should be settled by diplomatic negotiation, and it entirely con- 
curs with the suggestion of the Imperial German Government that the 
simplest way would be to agree, as proposed in your note, " that each 
of the two Governments designate an expert and that the two experts 
jointly fix the amount of indemnity for the vessel and any American 
property which may have been sunk with her," to be paid by the 
Imperial German Government when ascertained as stated in your 
note. It is assumed that the arrangement will include some provision 
for calling in an umpire in case the experts fail to agree. 

The Government of the United States notes that your suggestion 
is made with the express reservation that a payment under this 
arrangement would not constitute an admission that American treaty 
rights had been violated, but would be regarded by the Imperial Ger- 
man Government merely as fulfilling a duty or policy founded on 
existing treaty stipulations. A payment made on this understanding 
would be entirely acceptable to the Government of the United States, 
provided that the acceptance of such payment should likewise be 
understood to be without prejudice to the contention of the Govern- 
ment of the United States that the sinking of the Fryc was without 
legal justification, and provided also that an arrangement can be 
agreed upon for the immediate submission to arbitration of the ques- 
tion of legal justification, in so far as it involves the interpretation of 
existing treaty stipulations. 

There can be no difference of opinion between the two Governments 
as to the desirability of having this question of the true intent and 
meaning of their treaty stipulations determined without delay, and 
to that end the Government of the United States proposes that the' 
alternative suggestion of the Imperial German Government also be 
adopted, so that this question of treaty interpretation can be submitted 
forthwith to arbitration, pursuant to Article XXXVIII of The Hague 
convention for the pacific settlement of international disputes. 

In this way both the question of indemnity and the question of 
treaty interpretation can promptly be settled, and it will be observed 
that the only change made in the plan proposed by the Imperial Ger- 
man Government is that instead of eliminating either one of its 
alternative suggestions, they are both given effect, in order that both 
of the questions under discussion may be dealt with at the same time. 

If this proposal proves acceptable to the Imperial German Govern- 
ment, it will be necessary also to determine whether, pending the 
arbitral award, the Imperial German Government shall govern its 
naval operations in accordance with its own interpretation, or in 
accordance with the interpretation maintained by the United States, 
as to the obligations imposed by their treaty stipulations, and the 
Government of the United States would be glad to have an expres- 
sion of the views of the Imperial German Government on this point. 

Lansing. 

{The New York Times, August i8, IQIS-) 

No. 66. British proclamation, August 21, 19 15, declaring 
cotton contraband of war.''' 

Now, therefore, we do hereby declare, by and with the advice of our 
Privy Council, that, during the continuance of the war, or until we 

* See Nos. 6, lo, 31. 



THE PROTECTION OF NEUTRAL RIGHTS AT SEA 129 

do give further i)iiblic notice, the following articles will be treated as 
absolutely contraband, in addition to those set out in our royal proc- 
lamation aforementioned: Raw cotton, cotton linters, cotton waste, 
and cotton yarn. 

And we do hereby further declare that this our royal i)roclamation 
shall take effect from the date of its publication in the London 
Ga:;cttc. 

(The New York Times, August 22, 1915.) 



LIBRARY OF CONGRESS 




020 914 130 9^ 



